CRIME  AND   CRIMINALS 


CRIME  and  CRIMINALS 

BEING 

THE   JURISPRUDENCE    OF    CRIME 

MEDICAL,     BIOLOGICAL,     AND     PSYCHOLOGICAL 


BY 
CHARLES   MERCIER 

M.D.,    F.R.C.P.,    F.R.C.S. 

AUTHOR    OF 

1  CRIMINAL   RESPONSIBILITY,"    "  CRIME    AND    INSANITY,"    "  CONDUCT   AND    ITS   DISORDERS, 
"  PSYCHOLOGY,    NORMAL    AND    MORBID,"    "  THE   PRINCIPLES    OF   RATIONAL 
EDUCATION,"    "A    NEW   LOGIC,"    ETC.   ETC. 


WITH  AN  INTRODUCTION  BY 

SIR   BRYAN   DONKIN, 

M.A.,    M.D.  OXON.,    F.R.C.P. 

MEMBER    OF    THE    BOARD    OF    DIRECTORS   OF    CONVICT    PRISONS, 
LATE   ONE   OF    H.M.'s    COMMISSIONERS   OF   PRISONS 


NEW   YORK 
HENRY    HOLT   AND    COMPANY 

1919 


INTRODUCTION 

BY 
SIR  BRYAN  DONKIN,  M.A.,  M.D.OxoN.,  F.R.C.P. 

MEMBER   OF    THE    BOARD    OF    DIRECTORS   OF    CONVICT    PRISONS,    LATE    ONE    OF    H.M.'S 
COMMISSIONERS    OF    PRISONS 

I  WELCOME  the  opportunity  of  writing  a  few  words  of 
introduction  to  Dr.  Mercier's  important  work  on  the 
Jurisprudence  of  Crime.  I  have  especial  pleasure  in  so 
doing,  not  only  from  long  friendship  with  him,  and  from 
my  own  great  interest  in  the  subject,  but  also  from  my 
conviction  that  his  present  book  is  pre-eminently  sound 
in  its  principles  and  valuable  in  its  application  to  practice. 
It  is  now  thirteen  years  since  the  author  published  his 
well-known  work  entitled  Criminal  Responsibility,  which 
deals  especially  with  the  psychological  aspect  of  crime,  or 
the  states  of  mind  that  accompany  criminal  actions.  To 
that  highly  original  and  light-giving  work — the  first  to 
establish  firmly  the  doctrine  and  practice  of  taking  into 
account  grades  of  responsibility  or  just  liability  to  punish- 
ment, in  all  decisions  on  criminal  charges — this  new  book 
is  a  signally  scientific  and  useful  complement.  Although 
it  treats  with  noteworthy  relevance  of  the  medical,  bio- 
logical, and  psychological  aspects  of  crime,  its  most  dis- 
tinguishing marks,  setting  it  beyond  and  above  all  other 
books  on  the  subject  that  I  have  seen,  are  to  be  found 
in  the  chapters  named  "  Kinds  of  Crime  "  and  "  Crim- 
inals "  respectively.  It  is  here  indeed  that  the  claim  of 
this  work  to  be  an  important  contribution  to  the  study 

V 

2052578 


vi  CRIME  AND  CRIMINALS 

of  criminal  jurisprudence  is  particularly  justified,  and 
that  its  wide  difference  from  the  numerous  and  unsatis- 
factory writings  on  crime  and  criminals  becomes  apparent. 

Dr.  Mercier  shows  clearly  that  the  part  of  Juris- 
prudence, in  this  relationship,  is  to  regard  criminal  action 
not  merely  as  it  is  deemed  such  in  law,  but  rather  as  it 
ought  to  be  so  deemed  in  the  light  of  scientific  study.  In 
illustration  of  this  contention  he  instances  certain  acts  or 
omissions  to  act,  which  in  legal  practice  are  either  wrongly 
placed  in  the  category  of  crimes,  or  else  wrongly  ex- 
cluded from  it.  Stealing  the  use  of  a  thing  ought  certainly 
to  be  recognized  as  a  crime  and  punished  as  such.  At 
present  it  is  either  not  punishable  at  all,  or  when  money 
is  the  thing  whose  use  is  stolen,  the  crime  is  looked  upon 
as  that  of  stealing  the  money  itself,  a  very  different  and 
much  more  serious  crime.  Dr.  Mercier  considers  that 
breach  of  contract  and  false  imprisonment  also  should  be 
crimes;  and  he  seems  to  have  reason  on  his  side. 

Among  the  many  fresh  lights  thrown  on  his  subject 
by  Dr.  Mercier  the  doctrine  that  the  turpitude  of  a 
criminal  differs  widely  from  that  of  the  crime  deserves 
very  special  attention.  The  turpitude  of  the  criminal  is 
to  be  judged  by  the  intention  with  which  he  performs  an 
act.  If  he  intends  and  tries  to  murder  a  man,  and  does 
not  succeed,  he  should  be  hanged;  and  if  he  intends  to 
kill  a  dog  and  by  mistake  kills  a  man  he  should  be 
punished  only  for  killing  the  dog.  This  applies  to  all 
other  crimes.  Whether  the  victim  dies  or  not  is  often 
an  accident  depending  on  the  accessibility  and  skill  of  a 
surgeon,  or  on  the  accuracy  of  aim  of  the  criminal.  But 
the  intention  is  the  same  in  any  case,  and  as  the  intention 
undoubtedly  determines  turpitude,  so  it  ought  to  deter- 
mine the  crime  and  the  punishment. 

Throughout  this  book  the  author  takes  the  view  that 


INTRODUCTION  vii 

the  study  of  crime  and  its  causes  is  properly  the  study 
of  criminal  or  anti-social  action  by  individual  offenders; 
he  denies  that  any  science  of  "  Criminology "  can  be 
founded  on  generalizations  drawn  from  observation  of 
convicted  criminals  en  masse.  This  appears  to  me  to  be 
essentially  sound.  My  experience  and  study  of  criminals 
have  led  me  to  much  the  same  conclusion  as  his. 

I  am  of  opinion  that  this  work,  written  as  it  is  with 
Dr.  Mercier's  unfailing  clarity  of  style,  will  be  recog- 
nized as  an  outstanding  and  lasting  contribution  to  the 
study  of  Criminal  Jurisprudence. 


PREFACE 

WITH  the  exception  of  logic,  there  is  no  subject  on  which 
so  much  nonsense  has  been  written  as  this  of  criminality 
and  the  criminal.  The  books  of  the  criminologists  of 
the  Continental  school  are  extremely  numerous  and  of 
vast  bulk,  but  we  rise  from  their  perusal  dazed  and 
stunned  by  the  clamor  of  assertions  of  the  wildest  and 
most  improbable  character,  advanced  without  proof,  and 
with  scarcely  any  evidence  worthy  of  the  name.  A  super- 
cilious Oxford  critic  of  my  teaching  on  another  subject 
has  objected  that  my  "  pose  "  of  common  sense  becomes 
tiresome,  and  I  daresay  it  is  tiresome  to  those  to  whom 
common  sense  is  foreign  and  abhorrent;  but  I  am  im- 
penitent. I  still  think  that  common  sense  is  the  proper 
touchstone  by  which  the  validity  of  doctrines  should  be 
tested,  especially  those  doctrines  that  have  a  direct  bear- 
ing upon  practice ;  and  it  is  by  the  light  of  common  sense 
that  I  have  examined  the  subject  of  criminology.  The 
results  at  which  I  have  arrived  are  not  startling.  They 
are  indeed  widely  discrepant  from  those  of  most  of  my 
predecessors  who  set  up  to  be  "  scientific,"  but  I  trust 
they  will  commend  themselves  none  the  less  to  those 
whose  business  it  is  to  prevent  crime  and  to  counteract 
the  activities  of  the  criminal.  If  I  have  made  little  re- 
ference to  the  writings  of  my  predecessors,  it  is  not  be- 
cause I  am  unacquainted  with  them,  from  Beccaria  and 
Bentham  to  Dr.  Goring.  It  is  partly  because  I  have  de- 
rived little  assistance  from  them,  and  partly  because  I 
think  that  a  display  of  learning  made  by  constant  re- 

iz 


x  CRIME  AND  CRIMINALS 

ferences  to  authorities  is  dearly  bought  by  the  interrup- 
tion they  cause  to  the  attention  of  the  reader. 

My  acquaintance  with  criminals  and  their  doings  is  of 
long  standing.  As  medical  officer  of  lunatic  asylums  I 
have  had  criminals  under  my  charge;  as  surgeon  to  the 
police  and  as  consulting  physician  I  have  conducted  many 
personal  examinations  of  the  mental  constitution  of 
criminals,  both  sane  and  insane,  have  attended  many 
trials,  and  given  evidence  in  many  cases;  and  considering 
the  notorious  reputation  of  expert  witnesses,  I  may  record 
with  satisfaction  that  I  have  been  complimented  by  three 
judges  of  the  High  Court  on  the  fairness  of  my  evidence. 
My  study  of  conduct  in  general,  as  embodied  in  my  book 
Conduct  and  its  Disorders,  stands  alone  as  the  only  study 
in  existence  of  the  subject;  and  of  conduct  in  general 
criminal  conduct  is  a  part.  The  study  of  the  human  mind, 
including  the  criminal  mind,  has  been  the  chief  study  of 
my  life.  Although,  therefore,  I  am  neither  a  police  of- 
ficial, a  criminal  lawyer,  nor  a  prison  official,  I  can  claim 
to  have  some  first-hand  acquaintance  with  the  subject; 
and  although  my  knowledge  of  any  one  department  of  it 
must  be  less  than  that  of  a  person  directly  engaged  in 
that  department,  it  is  perhaps  on  that  very  account  less 
one-sided,  and  may  enable  me  to  take  a  more  compre- 
hensive view,  less  trammeled  by  precedent  and  deference 
to  authority.  The  fact  that  to  my  book  on  Criminal  Res- 
ponsibility was  awarded  the  Swiney  Prize,  on  the  ad- 
judication of,  among  others,  the  then  Lord  Chief  Justice, 
shows  that  the  view  of  an  outsider  may  sometimes  deserve 
consideration. 

Sir  James  Fitz James  Stephen,  the  most  clear-headed 
jurisprudent  that  this  country  has  produced,  says  in  his 
History  of  the  Criminal  Law  of  England  (vol.  iii.  p.  17), 
*c  In  homicide,  as  in  all  other  crimes,  the  definition  con- 


PREFACE  xi 

sists  of  two  parts,  the  outward  act  and  the  state  of  mind 
that  accompanies  it."  If  this  is  so — and  I  think  that  it 
cannot  be  gainsaid — then  crime  presents  to  the  student 
of  it  a  twofold  problem:  a  problem  in  praxiology,  the 
science  of  conduct,  and  a  problem  in  psychology,  the 
science  of  mind.  As  I  am  the  only  writer  upon  praxio- 
logy, and  perhaps  the  only  person  who  recognizes  that 
there  is  such  a  science,  certainly  the  only  person  who  has 
studied  it  systematically  and  so  written  of  it,  I  come 
to  the  study  of  crime  with  a  certain  equipment  for  grap- 
pling with  the  first  of  these  problems;  and  as  I  have 
devoted  the  greater  part  of  my  life  to  the  study  of  the 
mind  in  health  and  disease,  I  have  a  certain  equipment 
for  tackling  the  second  problem  also. 

Crime,  in  so  far  as  it  consists  of  acts,  and  of  acts 
prompted  by  purposes  and  in  pursuit  of  ends,  is  a  special 
part  of  conduct  at  large.  It  is  subject  to  the  laws  that 
regulate  conduct,  and  should  be  studied  with  reference 
to  these  laws.  Unless  so  studied,  its  study  must  be,  if 
not  altogether  barren,  yet  founded  on  no  firm  basis,  and 
incapable  of  reaching  wide  conclusions  well  fortified  in 
reason.  In  fact,  it  has  not  been  so  studied,  and  for  the 
good  reason  that  the  laws  that  regulate  conduct  are 
known  to  but  few,  and  as  far  as  I  know  have  gained  no 
general  acceptance.  Another  reason  why  crime  has  not 
in  this  country  been  systematically  studied  upon  general 
principles  as  a  special  department  of  conduct  at  large  is 
the  abhorrence  of  the  English  mind  for  general  prin- 
ciples. The  English  genius  is  predominantly  inductive. 
It  revels  in  facts,  values  facts  for  their  own  sake,  irre- 
spective of  their  bearing  on  general  principles,  and  looks 
upon  the  discovery  of  a  new  fact  as  the  highest  achieve- 
ment of  science.  Research  has  in  this  country  scarcely 
any  meaning  beyond  the  discovery  of  fact.  A  character- 


xii  CRIME  AND  CRIMINALS 

istic  illustration  of  the  contempt  with  which  the  discovery 
of  general  principles  is  regarded  in  this  country  is  af- 
forded by  the  Fellowship  of  the  Royal  Society.  This 
distinction  is  freely  awarded  to  men  who  are  never  heard 
of  outside  of  their  own  narrow  specialty,  if  in  that 
specialty  they  have  detected  and  described  a  new  mathe- 
matical formula,  or  a  new  grouping  of  stars,  a  new 
disease,  a  new  point  in  the  anatomy  of  an  insect,  a  new 
chemical  compound,  or  a  new  instrument  or  process  for 
the  observation  of  facts;  but  the  greatest  discoverer  of 
general  principles  of  modern  times,  perhaps  the  greatest 
discoverer  of  general  principles  of  all  time,  Herbert 
Spencer,  was  never  a  Fellow  of  the  Royal  Society.  Late 
in  life,  indeed,  when  he  was  indifferent  and  could  not 
enjoy  it,  when  he  was  solitary  and  could  not  impart  it, 
when  he  was  known  and  did  not  want  it,  it  was  offered 
to  him;  but  it  was  not  offered  to  him  until  his  fame  had 
gone  out  into  all  lands,  and  the  estimation  of  his  genius 
in  foreign  countries  was  so  universal  and  so  high  that 
his  exclusion  from  the  Royal  Society  cast  a  slur  upon  that 
body.  Then  the  Fellowship  was  offered  to  him,  and 
was  declined.  The  Fellowship  would  have  added  lustre, 
not  to  the  recipient,  but  to  the  Society.  It  is  curious 
that  the  English  should  look  so  askance  upon  general 
principles  and  be  so  distrustful  of  the  deductive  method, 
for  the  two  greatest  discoveries  of  the  human  intellect, 
Gravitation  and  Evolution,  were  both  made  deductively, 
and  both  by  Englishmen;  and  no  other  discoveries  have 
so  profoundly  influenced  human  thought  and  human  con- 
duct. However,  so  it  is,  and  I  cannot  anticipate  for  this 
attempt  to  investigate  crime  upon  general  principles,  and 
to  discover  the  laws,  if  any  laws  there  be,  to  which  it  is 
subject,  any  greater  immediate  welcome  than  has  been 
accorded  to  other  workers  by  the  deductive  method. 


PREFACE  xiii 

It  is  true  that  the  deductive  method  is  far  more  diffi- 
cult to  employ  in  a  trustworthy  manner  than  the  inductive, 
and  therefore  is  far  more  liable  to  go  wrong,  and  to  lead 
to  results  that  are  even  ludicrously  erroneous.  In  this 
very  field  of  the  investigation  of  crime,  have  we  not  the 
results  attained  by  Lombroso  and  other  criminologists 
as  a  warning?  But  it  is  also  true  that  induction  is  of 
value,  and  that  the  collection  of  facts  is  of  value  only 
as  they  illustrate  and  tend  to  establish  or  confute  a  gen- 
eral principle;  and  general  principles  are  reached  only 
by  deductive  reasoning.  I  make  no  apology,  therefore, 
for  the  method  that  is  almost  exclusively  employed  in 
this  book.  A  method  that  in  the  hands  of  Newton  and 
Herbert  Spencer  has  produced  such  stupendous  results 
must7"after  all,  have  some  merit;  and  even  in  the  study  of 
crime,  though  in  the  hands  of  Lombroso  and  his  many 
followers  the  inductive  method  has  given  us  nothing  of 
value,  it  must  not  be  forgotten  that  the  greatest  and 
almost  the  only  fruitful  results  of  the  study  of  crime 
have  resulted  from  the  labors  of  Beccaria  and  Bentham, 
both  of  whom  worked  by  the  deductive  method. 

In  various  parts  of  this  book  I  have  drawn  freely  on 
my  previous  writings,  for  it  consists  for  the  most  part  in 
applications  to  crime  of  the  principles  I  had  previously 
arrived  at  in  the  larger  field  of  conduct  in  general.  And, 
moreover,  this  is  not  the  first  time  I  have  published  a 
study  of  crime.  The  first  chapter  contains  considerable 
extracts  from  my  book  on  Conduct,  and  the  chapters  on 
"  Kinds  of  Crime  "  are  reproduced  in  substance  from  my 
book  on  Crime  and  Insanity.  For  permission  to  repro- 
duce them  here  I  am  indebted  to  the  courtesy  of  Messrs. 
Williams  &  Norgate.  CHARLES  MERCIER. 


CONTENTS 

CHAPTER  I 
THE  FACTORS  OF  CRIME 

PACE 

Criminal  Conduct  is  due  to  two  Factors,  the  Internal  and  the 
External — Instinct  and  Reason — Self-indulgence  and  Self- 
restraint — Habit  and  Automatism — The  Internal  Factor — 
The  External  Factor,  Circumstances — Effect  of  Circum- 
stances on  the  Internal  Factor — Direct  Effect  of  Cir- 
cumstances in  producing  Crime — Assumptions  of  the 
Continental  Criminologists — Of  the  Environmental  School 
—Opportunity  and  Temptation 1-46 

CHAPTER  II 
THE  PSYCHOLOGY  OF  CRIME 

Mental  Faculties — Desire  and  Aversion — Motive — Intention — 
Intellect — The  Part  of  Intellect  in  Crime — Knowledge  of 
Right  and  Wrong — Will — Volition — Choice — Determination 
— Volition  determines  Criminality — Feeling — Share  of  Feel- 
ing in  Crime 47-69 

CHAPTER  III 
THE  NATURE  OF  CRIME 

Definition  of  the  Word  "  Crime  " — The  Right  to  Punish — A 
Society  is  an  Organism— Biological  Value  of  the  Social 
Habit — Crime  is  an  Incident  of  the  Social  State — The 
Three  Fundamental  Instincts — Reproductive,  Self-preserva- 
tive, and  Social  Instincts — Their  Antagonism  and  Conflict — 
The  Part  of  the  Individual  in  Society — Conditions  of  Social 
Life — Forbearance — Self-sacrifice — Crime  is  Conduct  in- 
jurious to  Society — Complete  and  Incomplete  Socialization — 
Aids  to  Socialization — Custom,  Religion,  Law  .  .  .  70-98 


xvi  CRIME  AND  CRIMINALS 

CHAPTER  IV. 
KINDS  OF  CRIME 

The  Conflict  of  Instincts— The  Official  Classification— Dr. 
Goring's  Classification — Principles  of  Classification — The 
Nature  of  the  Injury— The  Motive — The  Degree  of  Turpi- 
tude— The  Object  Injured — International  Crimes — National 
Crimes — Public  Crimes — Private  Crimes — Indirect  Public 
Crimes — The  Bonds  of  Society — The  Central  Power — Cus- 
tom—Religion—Direct Public  Crimes,  Primary— The  Pri- 
mary Functions  of  the  State — Defense  and  Keeping  the 
Peace— Treason— Breach  of  the  Peace— Subsidiary  Public 
Crimes — Crimes  against  the  Administration  of  Justice — 
Crimes  against  the  Revenue— Crimes  against  the  Officers 
of  the  State — Abuse  of  Authority — Minor  Functions  of  the 
State  and  Minor  Public  Offenses — Offenses  against  State 
Monopolies— Offenses  against  the  Protective  Laws— 
Against  the  Benevolent  Laws— Against  the  Hedonistic 
Laws — Suicide 99-1+2 

CHAPTER  V 
PRIVATE  CRIMES 

Division  of  Private  Crimes— Self-conservative  Crimes— Ma- 
licious Crimes — Directly  Self-conservative  Crimes — Crimes 
Committed  for  Gain — Property  and  Ownership — Three 
Kinds  of  Property — Conditions  of  Honest  Transfer  of 
Property — Knowledge — Stealing  the  Use  of  a  Thing- 
Consent — Free-will — Knowledge  of  the  Circumstances- 
Murder  for  Gain — Breach  of  Contract 143-175 

CHAPTER  VI 
FAMILY  AND  RACIAL  CRIMES 

Importance  of  the  Family  in  Social  Life— Crimes  of  Jealousy- 
Offenses  against  Chastity  and  Modesty — Offenses  against 
Marriage— Offenses  against  the  Racial  Principle— Neglect 
of  and  Cruelty  to  Children — Infanticide — Procuring  Abor- 
tion—Preventing Conception— Unnatural  Crimes  .  .  .  176-198 


CONTENTS  xvii 

CHAPTER  VII 
CRIMINALS 

PAGE 

Differences  between  Criminals  and  Non-Criminals — Difference 
in  the  Internal  Factor — In  the  External  Factor — The 
Primitive  View  of  the  Criminal — Subsequent  Views — Bec- 
caria  and  Bentham — Criminal  Lunatics  and  Children — 
Lombroso's  Views — The  Environmental  School — Criminal- 
ity as  Madness — Dr.  Goring's  Views — Examination  of  the 
Value  of  the  Statistical  Method— The  Writer's  View— All 
Men  are  Potential  Criminals 199-231 

CHAPTER  VIII 
KINDS  OF  CRIMINALS 

Habitual  Criminals  and  Occasional  Criminals — The  Instinctive 
Criminal  or  Moral  Imbecile — The  True  Kleptomaniac, 
Pyromaniac,  etc. — The  Recidivist — The  Specialist  in  Crime 
— Individuality  of  the  Criminal  makes  Individuality  in 
Crime — The  Occasional  Criminal — The  Juvenile  Criminal  232-25* 

CHAPTER  IX 

PREVENTION,  DETECTION,  AND 
PUNISHMENT  OF  CRIME 

Prevention — By  Diminishing  Opportunity  and  Temptation — By 
Training  and  the  Cultivation  of  Esprit  de  Corps — Detec- 
tion— General  Atcherley's  Method — Punishment — Retalia- 
tion— The  Turpitude  of  the  Crime  and  of  the  Criminal — 
Motive — Intention — Temptation — Magnitude  of  the  Injury 
— Proportion  of  Injury  Inflicted  to  Benefit  Gained — De- 
liberation— Alarm — Danger — Record  of  the  Criminal — 
Frequency  of  the  Crime — Deterrence — Not  the  only  Motive 
of  Punishment — Not  to  be  Secured  by  Severity  of  Punish- 
ment— But  only  by  Promptitude  and  Certainty  of  Punish- 
ment— Punishment  should  fit  the  Crime — Reparation — Re- 
form of  the  Criminal 253-281 

INDEX         283-290 


CRIME  AND  CRIMINALS 

CHAPTER  I 
•»  THE  FACTORS  OF  CRIME 

CONSIDERED  in  the  broadest  and  most  general  way,  crime 
consists  in  action  for  the  attainment  of  a  purpose,  and  this 
is  the  definition  of  conduct  at  large.  Of  course,  crime  is 
a  special  department  of  conduct,  marked  off  from  the 
resFof  conduct  by  certain  differences,  which  will  be  con- 
sidered in  a  later  chapter;  but  still,  crime,  at  any  rate  in 
its  external  and  observable  aspect,  is  conduct,  and  there- 
fore is  subject  to  the  laws  that  regulate  conduct,  is  marked 
by  the  characters  of  conduct,  and  is  analyzable  into  the 
elements  into  which  all  conduct  can  be  analyzed. 

Crime,  in  common  with  all  other  varieties  of  conduct, 
consists  of  acts  in  pursuit  of  ends,  and  in  common  with 
other  modes  of  conduct  may  be  contemplated  with  respect 
to  the  action,  or  with  respect  to  the  end  or  purpose.  All 
action,  criminal  as  well  as  harmless,  presents  certain  com- 
plementary pairs  of  qualities,  ranging  in  degree  from 
the  maximum  to  the  minimum  of  each  quality,  which  is 
the  same  thing  as  from  the  minimum  to  the  maximum  of 
the  complementary  quality.  Thus,  all  action  is  in  some 
degree  spontaneous  or  elicited  by  circumstances,  scanty  or 
abundant,  instinctive  or  reasoned,  self-indulgent  or  self- 
restrained,  impulsive  or  deliberate,  voluntary  or  involun- 
tary, novel,  habitual,  or  automatic,  original  or  imitative, 
crude  or  elaborate,  skilful  or  unskilful,  play  or  work. 


2  CRIME  AND  CRIMINALS 

In  describing  conduct  at  large,  each  of  these  pairs  of 
qualities  must  be  examined,  and  action  described  accord- 
ing as  it  presents  more  of  one  of  these  complementary 
pairs  than  of  the  other;  but  in  the  description  of  criminal 
conduct  this  minute  examination  is  unnecessary.  Certain 
peculiarities  of  action  must,  however,  be  described  here. 

The  key  to  the  understanding  of  criminal  action  is  the 
recognition  that  it  is  the  resultant  of  two  complementary 
factors,  which  enter  in  varying  proportions  into  its  com- 
position. These  are  the  internal  factor  and  the  external 
factor,  the  one  inherent  in  the  constitution  of  the  crim- 
inal, the  other  imposed  upon  him  by  his  circumstances. 
Every  criminal  act  of  man,  in  common  with  every  other 
act  of  man  and  with  every  act  of  every  animal,  and  not 
only  of  every  animal  but  of  every  plant,  is  the  product 
of  these  two  factors,  the  internal  or  inherent  and  the 
external  or  imposed.  Each  factor  enters  in  some  degree 
into  the  composition  of  every  act,  but  the  proportions  in 
which  they  enter  into  different  acts  are  extremely  various. 
An  act  may  be  due  almost  wholly  to  the  internal  factor, 
with  a  minimum  of  action  of  the  external,  or,  vice  versa, 
may  be  almost  wholly  due  to  the  external  factor,  with  a 
minimum  of  influence  from  the  internal;  but  in  some 
degree  both  enter  into  the  composition  of  every  act,  and 
the  more  of  the  one  factor  that  is  present  the  less  of  the 
other  is  needed.  The  gross  blunders  that  have  been 
made  in  the  estimation  of  the  criminal  and  of  criminal 
action  have  been  almost  wholly  due  to  the  want  of  a 
proper  appreciation  of  the  existence,  nature,  and  com- 
bined action  of  these  two  factors.  On  the  one  hand,  the 
school  of  Lombroso  and  the  Continental  criminologist 
has  completely  ignored  the  external  factor,  and  has  mis- 
understood the  internal  factor;  on  the  other  hand,  a 
more  modern  school  has  ignored  the  internal  factor,  and 


THE  FACTORS  OF  CRIME  3 

misunderstood  the  nature  of  the  external.  The  one  at- 
tributes criminality  solely  to  innate  qualities,  or  tendencies 
to  action  derived  solely  from  heredity,  which  constitute 
only  a  part  of  the  internal  factor;  the  other  ascribes 
criminality  wholly  to  education  or  the  want  of  it,  to  up- 
bringing and  untoward  environment  in  early  life,  which 
constitute  only  a  part  of  the  external  factor.  In  order 
to  understand  the  true  sources  and  springs  of  criminality, 
it  is  necessary  to  take  account  of  the  whole  of  both 
factors,  and  to  apportion  the  part  which  is  taken  by  each. 
This^cannot  be  done  unless  we  take  a  wide  survey,  and 
regard  criminal  action  as  a  part,  a  specialized  and  pe- 
culiar part,  of  action  at  large  of  human  beings  generally; 
or  unless  we  allow  our  purview  to  take  a  wider  sweep, 
and  regard  both  criminal  conduct  and  human  conduct  at 
large  as  special  and  peculiar  instances  of  action  in  animals 
generally,  and  even  in  plants  also.  It  is  necessary  to 
take  wide  and  comprehensive  views;  and  if  such  a  view 
as  I  have  suggested  seems  unnecessarily  comprehensive, 
at  any  rate  it  errs  in  the  right  direction,  and  will  save  us 
from  the  perpetration  of  such  absurdities  as  characterize 
the  Continental  school  on  the  one  hand,  and  what  may 
be  termed  the  limited  environment  school  on  the  other. 

As  simple  a  combination  as  could  well  be  found  of 
the  internal  and  external  factors  of  action  is  witnessed 
in  the  germinating  seed.  The  radicle  strikes  downward : 
the  plumule  springs  upward.  The  action  is  fixed,  in- 
evitable, predictable,  certain.  The  respective  directions 
of  these  two  primary  elements  are  due  to  something  in- 
herent in  the  constitution  of  the  seed.  We  may  say,  in- 
deed, that  they  are  tropisms,  but  calling  them  by  this  new 
name  does  not  alter  the  nature  or  origin  of  the  action. 
Nor  do  we  gain  help  from  the  supposition  that  the  radicle 
is  attracted  and  the  plumule  repelled  by  gravity.  That 


4  CRIME  AND  CRIMINALS 

merely  brings  in  an  external  factor  as  adjuvant,  and  does 
not  dispense  with  the  necessity  of  the  internal  factor; 
for  without  this  factor  there  is  no  reason  why  the  plumule 
should  not  be  attracted  and  the  radicle  repelled,  or  why 
both  should  not  be  attracted  or  repelled.  In  this  simple 
case  we  see  in  their  barest  and  most  elementary  form  the 
combination  of  the  internal  and  external  factors  of 
action.  The  one  is  inherent  in  the  organism,  and  prompts 
to  action  that  springs  from  within,  action  that  must  and 
will  take  a  certain  direction.  It  is  the  escape,  or  rather 
the  expulsion,  of  energy  from  the  store  contained  in  the 
organism;  and  the  direction  in  which  it  escapes  is  deter- 
mined by  the  structure  of  the  organism.  The  energy  is 
there  in  store,  struggling  to  escape,  and  can  make  its 
way  out  only  through  paths  and  in  directions  predeter- 
mined by  the  structural  constitution  of  the  organism. 
The  other  factor  is  external  to  the  organism,  and  acts 
upon  it  from  without  in  such  a  way  as  to  determine  the 
time,  manner,  and  quality  of  the  action.  Until  it  receives 
from  without  the  necessary  warmth  and  moisture,  the 
seed  will  not  germinate.  When  it  receives  them,  it  takes 
advantage  of  them  to  act  in  its  own  predetermined  way. 
If  it  lies  upon  an  impervious  stone,  the  seed  cannot  drive 
its  radicle  directly  downwards:  it  must  go  round.  And 
if  a  stone  lies  upon  it,  it  cannot  protrude  its  plumule 
directly  upwards:  again  it  must  go  round.  If  the  soil 
in  which  the  seed  finds  itself  is  uncongenial,  or  contains 
some  deleterious  substance,  first  the  radicle  and  then  the 
seed  withers  and  perishes.  The  action  is  determined  in 
every  respect  by  the  combination  of  the  two  factors,  the 
internal  and  the  external.  Given  a  certain  vigor  of 
the  seed,  the  success  or  failure  of  its  action  depends  on 
the  favorable  or  unfavorable  character  of  its  circum- 
stances; given  favorable  circumstances,  the  success  or 


THE  FACTORS  OF  CRIME  5 

failure  of  the  action  is  determined  by  the  vigor  of  the 
seed.  The  action  is  the  product  of  the  combination  of 
the  internal  and  the  external  factors. 

If  we  transfer  our  attention  from  plants  to  animals, 
we  shall  find  that  the  same  rule  holds  good.  All  action 
is  the  combined  result  of  an  internal  factor  and  an  ex- 
ternal factor.  It  is  the  action  in  certain  circumstances  of 
an  animal  having  a  certain  nature  or  constitution,  and  the 
respective  parts  played  by  the  internal  constitution  and 
the  external  circumstances  vary  between  very  wide  limits 
and  are  complementary  to  one  another.  The  more  of 
throne  that  enters  into  the  composition  of  the  action, 
the  less  of  the  other  is  needed,  and  the  less  of  the  other 
is  possible.  This  is  displayed  most  conspicuously  in  the 
relative  shares  taken  by  instinct  and  reason,  which  must 
now  be  considered  with  some  care. 

INSTINCT  AND  REASON 

Reason  was  considered  by  the  ancients  the  distinctive 
possession  of  man,  and  all  animals  below  the  status  of 
mankind  were  denied  the  possession  of  any  share  what- 
ever of  reason.  The  division,  by  Porphyry,  of  the  genus 
animal  was  into  rationale  and  irrationale,  the  former 
including  man  alone,  and  the  latter  comprehending  all 
the  rest  of  the  animal  kingdom.  An  echo  of  this  ancient 
dictum  resounds  from  time  to  time  in  the  columns  of 
the  Spectator,  in  which  instances  of  reasoned  acts  done 
by  cats  and  dogs  are  given,  and  are  adduced  as  evidence 
that  here  and  there,  in  isolated  instances,  some  of  the 
lower  animals  have  evinced  a  modicum  of  reason;  but 
the  thesis  that  will  presently  be  maintained  here,  that 
every  animal  in  every  one  of  its  acts  exercises  reason 
to  some  extent,  is  one  that  would  startle  even  the  zo- 


6  CRIME  AND  CRIMINALS 

ophilists  of  the  Spectator,  and  to  their  antagonists  would 
partake  of  the  nature  of  blasphemy.  The  curious  thing 
about  the  discussion  as  to  whether  animals  can  reason — 
by  which  is  usually  meant  whether  or  no  a  single  animal 
here  and  there,  of  the  higher  grades,  has  attained  the 
ability  of  importing  a  modicum  of  reason  into  his  usually 
instinctive  action — is  that  it  proceeded  for  generations 
without  any  attempt  to  define  what  was  meant  by  in- 
stinctive action  or  by  reasoned  action,  or  what  is  the 
difference  between  the  two.  Lately  an  important  sym- 
posium on  the  subject  has  been  published;  but  as  it 
would  be  too  long  to  reproduce  here,  and  as  my  own 
view  does  not  agree  with  that  of  any  of  the  contributors 
to  this  symposium,  I  propose  to  state  my  own  view  with- 
out reference  to  the  views  of  my  predecessors. 

That  pigs  do  not  fly  is  a  truth  with  which  we  are 
familiar  from  our  earliest  years;  and  equally  true  is  it 
that  chickens  do  not  swim  nor  ducklings  scratch,  that 
men  walk  on  two  legs  and  horses  on  four.  In  other 
words,  the  way  in  which  the  inherent  motion  of  the 
organism  is  expended  is  determined  largely  by  external 
conformation.  But  it  depends  not  only  on  external  con- 
formation: it  depends  also  on  internal  organization.  If 
ducklings  do  not  scratch  the  ground  as  chickens  do,  it  is 
not  only  because  their  feet  are  not  adapted  to  scratching, 
but  also,  and  mainly,  because  they  are  wanting  in  the 
nervous  organization  that  actuates  the  movement  of 
scratching.  If  men  walk  upright  upon  two  legs,  while 
horses  walk  prone  on  four,  it  is  not  only  because  the 
whole  external  organization  of  men  and  horses  is 
adapted  to  their  several  modes  of  progression,  but  also 
because  men  possess  the  nervous  arrangements  necessary 
for  preserving  the  balance  in  the  upright  position,  and 
moving  the  legs  and  body  harmoniously  together  for  that 


THE  FACTORS  OF  CRIME  7 

end;  while  horses  possess  different  nervous  arrangements 
for  moving  the  four  limbs  in  alternation. 

What  is  true  of  the  differences  in  conduct  between  one 
species  of  animal  and  another  is  true  also  of  the  dif- 
ferences between  one  individual  and  another.  If  one 
man  expends  his  accumulated  motion  in  laborious  bodily 
exercise,  while  another  expends  his  in  internal  rearrange- 
ment by  working  out  some  abstruse  mathematical  or 
chemical  problem,  it  is  because  the  nervous  organiza- 
tion of  the  one  is  adapted  to  expend  motion  in  the  one 
direction,  and  that  of  the  other  is  adapted  to  expend  it 
in* the  other.  All  that  we  speak  of  as  "tastes,"  "ca- 
pabilities," "  aptitudes,"  and  so  forth,  are  embodied  in 
the  structural  organization  of  the  nervous  system;  and 
according  to  these  differences  of  nervous  organization, 
different  modes  of  conduct  will  be  manifested. 

Nevertheless,  in  this  matter  also  circumstances  play 
their  part.  The  external  factor  as  well  as  the  internal 
factor  is  potent.  A  man  would  rather  play  cricket  than 
golf.  For  the  one  he  has  a  natural  bent  and  aptitude; 
the  other  he  cares  little  about,  and  plays  much  less  skil- 
fully. But  it  requires  the  common  consent  of  twenty- 
two  people  to  play  cricket,  and  just  now  that  consent  is 
not  to  be  had;  and  he  can  play  golf  by  himself:  so, 
rather  than  sit  idle  at  home,  he  goes  off  to  play  golf. 
In  such  a  case  the  external  factor  determines  the  direc- 
tion in  which  motion  is  expended — the  character  of  the 
action.  No  man  can  become  an  accomplished  musician 
who  has  not  a  natural  bent  and  aptitude  for  music,  a 
capacity  for  feeling  certain  emotions  and  giving  expres- 
sion to  them  by  musical  sounds;  and  in  so  far  the  action 
of  the  musical  performer  is  determined  by  the  internal 
factor.  But,  however  highly  developed  his  aptitude  for 
music  may  be,  the  musician  cannot  play  without  his  in- 


8  CRIME  AND  CRIMINALS 

strument;  and  in  so  far  the  action  is  determined  by  the 
external  factor.  However  highly  a  man  may  be  endowed 
with  natural  dexterity  and  the  capability  of  nice  manip- 
ulation, he  cannot  do  accurate  work  without  suitable 
tools.  Whatever  his  skill  in  the  breaking  of  unmanage- 
able horses,  he  cannot  exercise  it  in  a  land  in  which  no 
horses  are.  However  great  an  orator  may  be,  he  can 
neither  convince  nor  persuade  those  who  do  not  under- 
stand the  language  he  speaks.  In  every  case  the  external 
factor  as  well  as  the  internal  helps  to  determine  the 
nature  and  character  of  the  action. 

So  far,  while  we  have  found  that  conduct  is  deter- 
mined by  the  combination  of  the  internal  factor  and  the 
external  factor — by  natural  aptitude  working  in  circum- 
stances— we  have  not  reached  the  problem  of  the  dif- 
ference between  instinctive  conduct  and  reasoned  con- 
duct. 

The  web-spinning  of  the  spider,  the  nest-building  of 
the  bird,  and  the  comb-building  of  the  bee,  are  usually 
considered  among  the  most  perfect  types  and  examples 
of  instinct.  It  is  worth  while  to  examine  them,  to  seek 
the  quality  that  is  peculiar  and  characteristic  of  instinc- 
tive action ;  and  I  think  it  will  be  found  in  their  fixed  and 
invariable  character. 

The  web  constructed  by  every  individual  of  a  species 
of  geometrical  spider  agrees  very  closely  in  its  main 
features  with  the  web  of  every  other  individual  of  that 
species.  Each  web  consists  of  a  few  main  supports,  at- 
tached by  their  extremities  to  surrounding  objects,  and 
enclosing  a  polygonal  area;  of  spokes  radiating  at  equal 
angles  from  the  centre  of  this  area,  and  attached  at 
their  peripheral  extremities  to  its  sides;  and  of  two  sets 
of  spirals  attached  to  the  spokes — an  inner  set,  fine  and 
closely  approximated,  and  an  outer  set,  thicker  and  in  a 


THE  FACTORS  OF  CRIME  9 

wider  spiral.  The  striking  feature  of  the  web  is  its 
geometrical  character.  The  spokes  are  set  at  equal 
angles;  the  spirals  are  set  at  equal  intervals.  In  the  fea- 
tures enumerated,  the  webs  of  all  such  spiders  are  alike. 
They  do  not  vary.  We  can  predict,  before  the  spider 
has  spun  an  inch  of  line,  that  its  web  will,  when  finished, 
have  these  characters.  As  far  as  these  characters  are 
concerned,  the  web  is  completely  determinate  in  structure. 
Its  construction  is  determined,  as  far  as  these  features 
are  concerned,  by  the  organization  of  the  spider;  and 
the  .animal  cannot  construct  a  web  of  any  other  pattern. 
Moreover,  we  can  be  quite  certain  that  if  the  young 
spider  survives  to  a  certain  age,  it  will  construct  a  web. 
Such  action  is  called  instinctive.  We  give  the  name  "  in- 
stinctive "  to  action  which  is  determinate;  which  is  exe- 
cuted uniformly  by  every  individual  of  the  species;  which 
is  predictable.  Instinctive  action,  therefore,  is  that 
which  is  determined  entirely  by  the  internal  factor — by 
the  organization  of  the  animal;  not  only  as  to  its  initia- 
tion, progress,  and  conclusion,  but  also  as  to  its  direction, 
form,  or  character. 

Another  mode  of  action  that  is  by  universal  consent 
regarded  as  a  characteristic  example  of  instinctive  action 
is  the  comb-building  of  the  hive-bee.  The  comb  is  built 
of  hexagonal  cells  with  parallel  sides  and  with  pyramidal 
bases  composed  of  three  rhombic  plates.  The  cells  are 
all  of  the  same  dimensions,  the  walls  of  the  same  thick- 
ness; the  sheets  of  comb  are  flat,  and  hang  vertically 
from  the  roof  of  the  hive.  Every  cell  in  the  comb  is  a 
perfect  geometrical  figure,  and  every  cell  is  similar  to 
every  other  cell,  not  only  in  that  comb  but  in  other  combs 
in  the  hive,  and  not  only  in  the  other  combs  in  that  hive, 
but  in  every  comb  in  every  hive  of  the  same  species  of 
bee.  The  cells  are  made  uniformly  by  every  individual 


io  CRIME  AND  CRIMINALS 

of  the  species;  their  shape  and  size  and  material  and  dis- 
position are  all  determinate.  They  are  predictable. 
They  are  due  to  a  certain  mode  of  action  that  is  pre- 
determined by  the  organization  of  the  bee.  The  nervo- 
muscular  apparatus  of  the  bee  is  so  constructed  and  so 
conditioned  that,  when  it  is  actuated  or  set  in  operation, 
it  turns  out  work  of  this  nature  and  this  pattern  with 
mechanical  regularity;  and  this  is  the  character  of  in- 
stinctive action. 

A  third  mode  of  action  that  is  typically  instinctive  in 
character  is  the  nest-building  of  birds.  Every  bird  of  the 
same  species  builds  its  nest  in  a  position,  of  a  form  and 
mode  of  construction,  of  a  size,  and  of  materials,  similar 
to  the  nest  of  every  other  individual  of  the  same  species. 
The  rook  always  builds,  at  the  top  of  a  tall  tree,  a  loosely 
constructed  nest  of  live  twigs.  The  tailor-bird  always 
builds  in  the  hollow  made  of  leaves  that  it  has  sewn 
together.  The  kingfisher  and  the  sand-martin  always 
build  in  holes  excavated  in  the  ground.  The  wood- 
pigeon  never  builds  on  a  cliff,  nor  the  rock-pigeon  in  a 
tree.  The  magpie  and  the  long-tailed  tit  build  domed 
nests  opening  at  the  side ;  the  tern  and  the  ostrich  scoop 
holes  in  the  ground.  Each  bird  in  nidification  follows 
a  course  of  conduct  that  is  fixed,  invariable,  determinate, 
predictable,  the  same  for  every  individual  of  the  species. 
Like  the  spider  in  spinning  its  web  and  the  bee  in  build- 
ing its  comb,  the  bird  does  not  need  to  learn  from  ex- 
perience how  the  instinctive  act  is  to  be  done.  It  is  done 
by  the  operation  of  an  internal  mechanism,  which,  when 
put  in  operation,  can  act  in  only  one  way;  and  the  pro- 
duct of  the  mechanism  is  almost  as  determinate  as  the 
product  of  an  automatic  lathe  or  a  loom.  It  is  this  fixed, 
invariable,  unmodifiable  character  that  is  the  mark  and 
the  differentia  of  instinctive  action. 


THE  FACTORS  OF  CRIME  n 

But  although  the  webs  of  all  spiders  belonging  to  the 
same  species  are  precisely  alike  in  all  their  main  features, 
save  only  in  size,  yet  there  are  in  every  web  features 
which  are  peculiar  to  it  alone — features  in  which  the  web 
of  every  individual  spider  differs  from  the  web  of  every 
other,  and  in  which  even  the  second  and  third  webs  made 
by  the  same  spider  differ  from  the  first  and  from  each 
other;  features  which  are  unpredictable,  and  are  deter- 
mined, not  by  the  internal  organization  of  the  spider, 
working  in  a  predetermined  manner,  but  by  external  cir- 
cusrrstances,  to  which  the  action  of  the  spider  is  adapted. 
The  objects  to  which  the  main  supports  of  the  web  are 
attached  differ  in  every  case.  Their  distance  apart  is 
never  the  same.  Their  number  varies  widely.  In  con- 
sequence of  these  differences,  the  size  and  shape  of  the 
polygonal  area  that  bounds  the  web  are  never  alike  in 
any  two  webs — not  even  in  two  successive  webs  built  by 
the  same  spider  in  the  same  place.  The  construction  of 
the  web  up  to  this  stage,  and  in  these  respects,  is  adapted 
to  the  individual  circumstances  of  the  place  and  the  oc- 
casion in  which  it  is  made;  and  the  adaptation  is  often 
ingenious.  The  thickness  of  the  main  supports  of  the 
web  is  made  proportional  to  their  length.  Their  anchor- 
age to  the  fixed  point  to  which  they  are  attached  may 
be  single  or  multiple.  When  the  wind  is  so  high  as  to 
endanger  the  structure,  a  spider  has  been  known  to  hang 
a  pebble  to  the  lower  edge  of  its  web,  to  afford  a  yield- 
ing support  and  tightener.  Again,  the  operation  by 
which  the  spirals  are  affixed  to  the  spokes  is  fixed  and  in- 
variable, and  never  undergoes  alteration;  but  the  opera- 
tion by  which  the  main  supports  of  the  web  are  attached 
is  subject  to  much  variation.  The  spider  may  float  the 
web  in  the  air,  and  allow  the  wind  to  carry  it  across  the 
intervening  space;  or  she  may  run  round  with  it,  giving 


12  CRIME  AND  CRIMINALS 

out  thread  as  she  goes,  from  one  point  of  support  to 
the  other;  or  she  may  drop  from  one  point  of  support 
and,  suspended  at  the  end  of  a  thread,  allow  herself  to 
be  swung  by  the  wind  until  she  reaches  the  other  point 
of  support.  The  method  she  adopts  is  determined  by 
the  circumstances  in  which  she  is.  In  still  air  she  does 
not  depend  on  the  wind  to  carry  her.  The  precise  posi- 
tion of  the  web,  the  number  of  the  prime  supports,  the 
precise  shape  of  the  polygonal  area  that  they  enclose, 
the  objects  to  which  they  shall  be  attached,  the  mode  of 
reaching  these  objects,  the  method  of  anchoring  the 
supports  thereto — all  these  are  variable.  They  are  not 
the  same  for  any  two  spiders.  They  are  not  the  same 
for  any  two  webs.  They  are  specially  adapted  to  the 
particular  circumstances  in  which  the  web  is  built.  They 
are  determined  by  the  choice  of  the  spider  on  the  parti- 
cular occasion;  and  choice  is  the  distinguishing  mark  of 
reason.  In  these  respects,  therefore,  the  action  of  the 
spider  in  spinning  its  web  is  not  instinctive.  It  has  none 
of  the  marks  of  instinct.  It  is  reasoned.  Thus  we  find 
that,  if  instinctive  action  is  that  which  is  invariable,  de- 
terminate, predictable,  unmodified  by  external  circum- 
stances, the  same  in  every  individual  of  the  species,  the 
product  of  rigid  organization  acting  under  fixed  condi- 
tions; and  if  reasoned  action  is  variable,  indeterminate, 
unpredictable,  the  product  of  choice  in  adaptation  to 
circumstances;  then,  into  an  act  so  thoroughly  and  typi- 
cally instinctive  as  the  web-spinning  of  the  spider  an  ele- 
ment of  reason  enters.  Part  of  this  instinctive  act  is  rea- 
soned. 

Although  the  structure  of  the  comb  of  the  hive-bee 
is  determinate  in  the  respects  enumerated,  yet  it  is  not 
completely  determinate.  In  some  respects  it  is  variable, 
and  is  modified  in  adaptation  to  circumstances.  Some- 
times, to  fill  up  a  corner,  or  to  avoid  a  projection,  the 


THE  FACTORS  OF  CRIME  13 

sheet  of  comb  is  not  flat,  but  is  curved;  and  in  that  case 
the  cells  are  not  parallel-sided,  but  frustums  of  pyramids, 
those  on  the  convex  side  having  mouths  larger  than  their 
bases,  and  those  on  the  concave  side  having  bases  larger 
than  their  mouths.  When  a  comb  is  in  danger  of  drag- 
ging away  from  its  supports,  or  if  it  has  actually  fallen, 
buttresses  are  built  to  sustain  it,  and  in  these  buttresses 
the  shape  of  the  cells,  while  generally  conforming  with 
the  shape  of  the  type,  is  yet  modified  and  subordinated 
to  the  object  to  be  served.  The  cells  of  drone-comb  are 
larger  than  the  cells  of  ordinary  comb;  and  where  the 
two  adjoin,  the  intermediate  cells  are  modified  in  shape 
to  suit  the  circumstance.  A  bee  will  sometimes  pull 
down  and  rebuild  a  piece  of  work,  it  may  be  more  than 
once,  until  the  work  is  to  her  satisfaction;  and  one  bee 
will  pull  down  the  work  of  others  and  reconstruct  it  in 
better  form.  In  all  these  cases  the  instinctive  action  is 
modified  to  suit  the  exigencies  of  particular  circum- 
stances, and  such  modification  is  guided  by  choice  of  one 
out  of  several  alternatives — is  determined,  not  by  the  un- 
alterable action  of  the  internal  factor,  but  by  the  require- 
ments of  the  external  factor,  and  is  therefore  not 
instinctive,  but  reasoned. 

It  is  the  same,  mutatis  mutandis,  with  the  nest-building 
of  birds.  The  rook  always  builds,  of  live  twigs,  a  loosely 
constructed  nest  at  the  top  of  a  tall  tree.  In  these  re- 
spects its  action  is  fixed,  determined,  predictable,  un- 
rnodifiable,  instinctive.  But  which  particular  tree,  and 
which  branch  of  the  tree,  shall  bear  the  nest — these  are 
not  predetermined.  These  are  not  the  same  for  every 
individual  of  the  species.  There  is  an  internal  compul- 
sion in  the  rook  to  build  a  nest,  and  to  build  it  of  live 
twigs  at  the  top  of  a  tall  tree;  but  there  is  no  internal 
compulsion  in  the  rook  to  select  one  tree  rather  than 


I4  CRIME  AND  CRIMINALS 

another,  or  one  branch  rather  than  another.  Were  it  so, 
the  result  would  be  disastrous.  If  every  rook  built  on 
the  same  branch  of  the  same  tree,  the  branch  and  the 
tree  would  be  broken  down.  Nor  is  there  any  internal 
compulsion  in  the  rook  to  select  one  twig  rather  than 
another  for  his  purpose.  He  settles  on  any  tree  that  has 
a  likely  branch,  and  proceeds  to  twist  it  off;  and  in  all 
the  details  of  nidification — in  placing  the  sticks  and  inter- 
lacing them  with  one  another — he  is  guided  by  what  has 
been  already  done,  and  by  the  particular  direction  and 
conformation  of  the  branch  which  is  his  foundation.  In 
these  matters  his  action  is  modifiable.  It  is  subject  to 
variation,  to  choice,  to  alteration  in  adaptation  to  exter- 
nal conditions.  Here  it  is  the  external  factor  that  de- 
termines the  mode  and  direction  of  his  action. 

It  is  the  same  with  other  birds.  While  some  make 
their  nests,  like  rooks,  on  tall  trees,  other  species  have 
other  instincts.  All  the  individuals  of  one  species  make 
their  nests  in  dense  parts  of  thick  bushes;  all  those  of 
another  in  holes  in  the  ground;  all  those  of  another  in 
inaccessible  cliffs;  and  so  on.  But  as  to  the  particular 
bush  and  the  particular  part  of  the  bush,  as  to  the  par- 
ticular cliff  and  the  particular  part  of  the  cliff,  in  which 
the  nest  shall  be  made,  these  are  not  predetermined. 
One  bush  is  more  suitable  from  its  greater  density; 
another  has  a  branch  more  suitably  shaped;  which  of 
the  two  shall  be  the  locality  of  the  nest  is  a  matter  for 
the  decision  and  the  deliberate  choice  of  the  nesting  bird. 
It  is  not  predetermined.  It  is  uncertain.  It  varies.  It 
is  determined  by  choice.  So  in  the  matter  of  materials. 
The  rook  builds  its  nest  of  live  twigs,  the  thrush  of  fib- 
rous roots  and  stems,  the  chaffinch  of  moss  and  lichen; 
but  what  particular  twig,  or  fibre,  or  bit  of  moss  shall 
be  used  is  not  predetermined.  It  is  a  matter  of  selection 


THE  FACTORS  OF  CRIME  15 

— of  choice;  and  choice  is  reason.  Some  trees,  limes 
for  instance,  are  preferred  by  the  rook,  but  he  is  not 
restricted  to  limes;  nor,  where  there  are  several  limes, 
is  he  restricted  to  any  one.  And  the  choice  of  suitable 
twigs  on  any  one  tree  is  almost  limitless.  Yet  on  each 
visit  he  chooses  one.  He  does  not  always  choose  the 
same.  He  does  not  necessarily  take  the  nearest,  or  the 
easiest  to  break.  His  action  varies  according  to  circum- 
stances. It  is  determined  by  external  conditions.  That 
is  to  say,  while  the  act  of  nest-building  is  determined  in 
its  main  features  by  internal  organization,  and  is  in  this 
respect  instinctive,  it  is  subject  in  its  details  to  the  opera- 
tion of  choice  in  adaptation  to  circumstances,  and  is  in 
this  respect  reasoned. 

It  would  be  easy  to  extend  indefinitely  this  brief  re- 
view of  instinctive  action,  and  to  show  that,  however 
rigidly  invariable  the  main  features  of  the  instinctive 
action  may  be,  there  is  always  a  margin  that  is  modified 
by  reason  in  adaptation  to  circumstances.  Enough  has 
been  said,  I  think,  to  show  that  no  act  is  wholly  instinc- 
tive. Into  every  instinctive  act  there  is  an  intrusion  of 
reasoned  action.  However  paramount  may  be  the  action 
of  the  fixed  organization  of  the  actor,  it  is  never  suffi- 
ciently complete,  at  any  rate  in  the  higher  animals,  to 
cover  the  whole  field  and  account  for  the  whole  of  the 
action.  However  dominant  the  action  of  the  fixed  or- 
ganization may  be,  there  is  always  a  margin  to  which 
it  does  not  extend,  in  which  choice  is  free,  in  which  action 
is  no  longer  determinate,  but  is  modifiable  in  adaptation 
to  circumstances;  and  such  modifiability  is  the  mark  of 
reasoned  action. 

I  do  not  deny  that  in  animals  whose  conduct  is  of 
primitive  simplicity  such  conduct  may  be  wholly  instinc- 
tive. The  conduct  of  a  fixed  bivalve,  for  instance,  is 


16  CRIME  AND  CRIMINALS 

almost  limited  to  the  opening  and  closing  of  its  shell; 
and  the  latter  operation  takes  place,  no  doubt,  reflexly, 
in  response  to  stimulus ;  but  it  is  not  impossible  that  some 
choice  is  exercised  by  the  animal  in  the  time  of  opening. 
My  position  is  not  in  the  least  invalidated,  however,  if 
there  are  actions  wholly  determined  by  the  organization 
of  the  actor,  and  unaffected  by  any  element  of  choice  or 
reason.  All  I  contend  for  is  that,  in  the  higher  animals 
at  any  rate,  and  in  elaborate  instincts,  an  element  of  rea- 
son is  always  present.  In  them  there  is  no  such  thing 
as  a  wholly  instinctive  act.  Generally,  it  would  be  cor- 
rect to  say  that,  while  the  end  is  dictated  imperatively 
by  instinct,  the  means  by  which  the  end  is  attained  are, 
to  a  varying  extent,  sought  by  reason ;  and  this  is  as  true 
of  the  action  of  mankind  as  of  that  of  the  animals  below 
mankind. 

The  conduct  of  men  is  usually  contrasted  with  the 
conduct  of  animals  and  looked  on  as  wholly  reasoned, 
while  that  of  animals  is  regarded  as  wholly  instinctive. 
But  on  examination  we  find  that,  as  the  conduct  of  the 
lower  animals  is  not  wholly  instinctive,  but  always,  at 
least  in  its  higher  manifestations,  contains  some  element 
of  reason,  so  the  conduct  of  man  is  not  wholly  reasoned, 
but  contains  always  some  element  of  instinct.  In  the 
lower  animals  the  internal  factor  greatly  predominates, 
and  little  margin  is  left  for  the  choice  of  means  to  attain 
the  end  that  instinct  dictates;  in  man  the  reasoned  factor 
encroaches  more  and  more  in  discovering  means  to  attain 
his  ends,  but  the  ends,  the  ultimate  ends,  are  always  in- 
stinctively determined.  In  contemplating  the  conduct  of 
man,  we  regard  mainly  the  means  by  which  he  achieves 
his  ends,  and  when  we  take  account  of  purposes,  we 
regard  mainly  the  proximate  and  intermediate  purposes, 
which,  as  well  as  the  immediate  means,  may  be  dictated 


THE  FACTORS  OF  CRIME  17 

by  reason;  and  thus  we  are  apt  to  regard  the  whole  con- 
duct of  man  as  reasoned,  because  we  confine  our  con- 
templation to  that  part  which  is  reasoned,  and  neglect 
those  fundamental  and  underlying  purposes  that  are  not 
reasoned,  but  instinctive.  In  truth,  and  on  close  exam- 
ination, it  is  found  that  instinct  is  no  more  excluded  from 
the  conduct  of  man  by  the  prevalence  of  reason  than 
reason  is  excluded  from  the  conduct  of  animals  by  the 
dominance  of  instinct.  The  difference  is  one  not  of  kind, 
but  of  degree.  In  lower  animals,  instinct  dictates  the 
enck.  and  not  only  the  end,  but  to  a  considerable  extent 
the  means  by  which  the  end  is  achieved,  and  leaves  but 
a  margin,  larger  or  smaller,  to  the  guidance  of  reason. 
In  man,  instinct  dictates  the  main  ends  only,  and  the 
reasoned  margin  is  so  greatly  increased  that  it  seems  to 
occupy  the  whole  area ;  but  it  does  not.  The  central  area 
is  always  occupied  by  instinct.  The  black  border  of  a 
sheet  of  white  paper  may  be  a  mere  line  round  the  edge; 
or  it  may  be  a  margin  so  broad  that  the  main  area  of  the 
paper  is  black,  and  only  a  small  patch  of  white  is  left 
in  the  middle;  but  the  two  very  different  sheets  merely 
present  extreme  variations  of  the  same  arrangement. 

The  business  man,  examining  the  plans  of  his  new 
premises,  adapting  them  to  his  new  machinery,  his  in- 
creased staff,  the  order  in  which  the  processes  of  manu- 
facture are  to  be  conducted,  the  reception  of  raw 
material,  the  packing  and  delivery  of  the  finished 
product,  and  many  other  considerations,  is  performing 
a  series  of  highly  reasoned  acts.  But  these  highly 
reasoned  acts  are  but  means  to  the  attainment  of  an 
end — the  end  of  acquiring  income  to  supply  his  wants. 
And  action  for  the  supply  of  his  wants — to  keep  him  in 
house,  warmth,  clothing,  food,  comforts,  and  even  luxu- 
ries— is  not  reasoned  action.  It  is  instinctive.  It  is 


i8  CRIME  AND  CRIMINALS 

certain  and  predictable  that  every  normal  man  will  en- 
deavor some  action  to  supply  himself  with  necessaries  to 
support  himself  and  his  family.  He  is  impelled  by  in- 
stinct to  act  in  some  way  for  the  attainment  of  this  end; 
but  here  the  impulse  of  instinct  terminates.  Instead  of 
finding,  as  in  the  case  of  the  bee,  an  elaborate  course  of 
action  for  the  supply  of  food  and  shelter  dictated  by  a 
rigid  instinct  which,  willy  nilly,  he  must  follow,  instinct 
dictates  merely  the  end  that  must  be  attained,  and  leaves 
it  entirely  to  reason  to  find  the  means  of  attaining  it. 

The  lover  who  schemes  and  plots  to  find  opportunity 
of  meeting  his  beloved,  who  presses  into  his  service  the 
telegraph,  the  postal  service,  the  railway,  visits  here 
and  letters  there,  the  exigencies  of  his  business,  and  the 
demands  of  his  employer,  is  conducting  a  series  of  opera- 
tions of  highly  reasoned  character.  All  these  acts  are 
reasoned  acts,  the  subjects  of  deliberation  and  choice,  not 
predetermined,  not  predictable,  subject  to  modification 
from  hour  to  hour  and  from  moment  to  moment  under 
the  influence  of  obstructing  circumstances.  But  the  main 
action,  to  which  these  are  all  subsidiary,  the  end  for 
which  they  are  the  means,  the  primary  course  of  conduct 
of  which  they  are  the  details,  that  is  to  say,  the  seeking 
the  association  with  a  person  of  the  opposite  sex  for  the 
purpose  of  courtship — that  is  not  a  reasoned  act.  That 
is  a  matter  of  instinct.  It  is  certain.  It  is  inevitable.  It 
is  determinate.  Instinct  demands  that  some  object  of 
association  shall  be  sought.  Instinct  determines  to  some 
extent  the  choice  of  the  particular  individual.  But  when 
instinct  has  done  this  much,  reason  is  left  to  fill  in  all 
the  details,  to  find  or  make  opportunities  for  that  as- 
sociation which  instinct  imperatively  demands.  The  in- 
ternal factor  supplies  the  main  direction  of  activity;  the 
external  factor  is  left  to  do  the  rest. 


THE  FACTORS  OF  CRIME  19 

The  man  of  science  who  conducts  some  prolonged  in- 
vestigation for  the  solution  of  a  difficult  problem,  say 
in  physics  or  biology,  immerses  himself  in  operations  of 
the  most  highly  reasoned  character;  but  these  highly 
reasoned  operations  are  means,  merely,  to  the  attain- 
ment of  some  end  that  is  dictated  by  an  imperious  in- 
stinct. Is  he  working  for  ultimate  pecuniary  reward? 
The  dictation  of  instinct  is  manifest.  Does  he  work  for 
fame?  The  desire  for  fame  is  a  high  development  of 
that  desire  for  the  esteem  of  his  fellows  which  is  the 
common  instinctive  possession  of  all  men.  Does  he  work 
for  the  pure  love  of  investigation,  and  to  find  out  the 
secrets  of  nature?  Then  he  is  actuated  by  the  same  in- 
stinct of  curiosity  that  prompts  the  girl  to  disarticulate 
her  doll,  the  boy  to  rip  up  the  bellows  and  pull  his  watch 
to  pieces;  that  draws  the  deer  to  the  decoy,  the  magpie 
to  the  jewel,  the  salmon  to  the  torch,  the  moth  to  the 
lamp. 

In  these  instances,  which  might  be  multiplied  inde- 
finitely, the  instinctive  factor  in  conduct,  while  it  really 
dominates  the  whole  and  determines  the  ultimate  end 
that  shall  be  pursued,  yet  leaves  so  completely  to  the 
guidance  of  reason  the  means  by  which  the  end  is  to 
be  attained,  that  the  reasoned  action  absorbs  the  whole 
of  the  attention,  and  the  conduct  of  mankind  is  com- 
monly supposed  to  be  governed  by  reason  alone.  So  far 
does  the  ultimate  instinctive  end  recede  into  the  back- 
ground, and  so  complicated  and  prolonged  becomes  the 
reasoned  action  by  which  that  end  is  sought,  that  in  many 
cases  the  ultimate  end  of  conduct  disappears  altogether 
from  the  view  of  the  actor,  who  pursues  some  inter- 
mediate end,  not  realizing  that  this  intermediate  end  is 
but  a  stage  towards  the  attainment  of  the  ultimate  aim 
to  which  his  instinct  impels  him.  When  the  business  man 


20  CRIME  AND  CRIMINALS 

is  making  plans,  raising  capital,  and  organizing  his  ar- 
rangements to  extend  his  business,  he  looks  only  to  the 
improvement  of  the  business  itself  and  the  prospective 
profit  that  it  will  bring  him.  He  is  not  directly  con- 
cerned, he  is  scarcely  conscious  of  the  fact,  that  his  ulti- 
mate motive  in  all  his  work  is  to  secure  himself  against 
want;  to  clothe  and  educate  his  children,  and  to  see  them 
established  in  the  world  and  able  to  provide  for  them- 
selves. When  the  lover  is  arranging  to  meet  his  mistress, 
he  thinks  only  of  the  pleasure  that  the  meeting  will  afford 
him,  and  would  be  outraged  to  be  told  that  his  ultimate 
motive  is  that  she  may  become  the  mother  of  his  children. 
And  when  the  man  of  science  is  poring  over  his  problem, 
the  only  motive  that  is  present  to  his  mind  is  the  interest 
of  the  pursuit,  the  overcoming  of  difficulties  and  the 
avoidance  of  fallacies.  He  does  not  stop  to  consider  the 
motive  at  the  back  of  what  he  is  doing. 

The  more  purely  instinctive  an  act  remains,  the  more 
immediately  and  directly  does  it  serve  its  purpose;  and 
the  introduction  or  extension  of  the  reasoned  element 
in  the  action  necessarily  postpones  the  attainment  of  the 
end.  When  the  spider  is  seeking  an  appropriate  posi- 
tion for  its  web,  and  determining  on  the  best  points  of 
support;  when  the  bird  is  seeking  an  appropriate  position 
for  its  nest,  and  weighing  the  comparative  advantages  of 
concealment,  security,  and  ease  of  construction;  the  build- 
ing of  the  structure  is  in  each  case  suspended,  postponed, 
and  delayed  by  as  much  time  as  is  consumed  in  the  search 
and  the  choice.  The  end  in  view,  however — the  con- 
struction of  a  secure  web  in  a  position  adapted  to  the 
capture  of  flies;  the  construction  of  a  secure  nest  in  a 
place  concealed  from  enemies,  or  inaccessible  to  them — 
is  so  much  more  successfully  attained  as  to  compensate 
for  the  delay  in  its  attainment.  When  a  hive  of  bees  sets 


THE  FACTORS  OF  CRIME  21 

about  to  modify  the  disposition  of  its  comb  by  making 
passages  here  and  building  buttresses  there,  the  time  thus 
occupied  is  taken  from  that  which  is  devoted  to  the  collec- 
tion and  storage  of  food,  that  the  young  may  be  reared 
and  the  colony  maintained  through  the  winter;  but  while 
the  attainment  of  the  end  in  view — the  intermediate  end 
of  storing  food — is  thus  suspended,  postponed,  and  de- 
layed, the  ultimate  ends  are  more  completely  attained  by 
the  easier  access  to  stores,  and  by  the  security  of  the 
comb  from  fracture  and  waste  of  its  contents.  When 
a  colony  of  beavers  excavates  a  canal  for  the  transport  of 
thfelogs  on  the  bark  of  which  they  feed,  the  collection  of 
the  logs  is  suspended,  postponed,  and  delayed;  but  the 
end  in  view,  the  collection  of  the  logs,  is  greatly  facilitated. 
.  This  power  of  suspending  and  postponing  the  imme- 
diate pursuit  of  an  end — this  postponement  of  motive,  as 
we  may  call  it — becomes,  in  the  higher  manifestations  of 
conduct,  one  of  its  most  distinctive  characters.  It  is  the 
mark  of  reasoned  action  to  forgo  the  immediate  grati- 
fication of  a  desire  for  the  sake  of  obtaining  a  greater 
future  advantage.  This  ability  to  postpone  and  suspend 
the  direct  pursuit  of  instinctive  ends,  and  to  interpose 
action  which  delays  this  gratification  while  it  secures  for 
the  actor  greater  advantages,  lies  at  the  root  of  all  pro- 
gress, all  civilization,  all  morality. 

It  has  been  said  that  the  man  who  first  contented 
himself  with  abusing  his  adversary  instead  of  assaulting 
him  took  the  first  step  in  civilization;  and  the  saying 
exhibits  appreciation  of  the  principle  under  discussion. 
If  a  man  gives  up  years  of  his  life  to  the  acquiring  of 
some  difficult  trade  or  profession,  it  is  because  the  de- 
ferred reward  that  he  will  thus  obtain  will  be  so  much 
greater  than  that  of  an  occupation  that  is  immediately  re- 
munerative. If  he  invests  his  gains,  he  forgoes  the  in- 


22  CRIME  AND  CRIMINALS 

stant  pleasure  of  spending  for  the  future  gratification  of 
a  fixed  income.  If  he  insures  his  life,  he  forgoes  the 
same  pleasure  for  the  advantage  of  his  family,  as  well  as 
for  his  own  contentment.  The  substitution  of  courtship 
for  rapine,  the  postponement  of  marriage  for  reasons  of 
prudence,  the  continual  advance  in  the  average  age  of 
marriage,  alike  bear  witness  to  the  same  principle. 

The  first  result  of  the  importation  of  reason  into  in- 
stinctive action  is,  then,  this  suspension  of  the  immediate 
or  direct  pursuit  of  the  end.  It  imports  a  power  of  sus- 
pending, checking,  controlling,  restraining,  or  inhibiting 
instinctive  action.  This  power  of  inhibition  is  insepar- 
able from  the  exercise  of  reason.  It  is  an  integral  part 
of  reasoned  action;  and  the  more  of  reasoning  employed, 
the  more  and  more  of  inhibition  is  involved  in  the  action. 

Reason  means,  first  of  all,  choice.  It  implies  a  selec- 
tion between  alternatives ;  and  however  rapidly  the  choice 
may  be  made,  there  is  always  some  interval  of  time  oc- 
cupied in  making  the  selection.  The  instinctive  impulsion 
to  take  action  directly  conducing  to  the  end  in  view  is 
overcome  by  the  power  of  voluntary  suspension  until  the 
course  that  seems  best  adapted  to  secure  the  end  is  de- 
cided upon.  For  the  time  being,  action  is  arrested;  and 
this  arrest  or  suspension  of  action  is  one  of  the  most 
striking  characters  of  reason.  This  power  of  suspend- 
ing, or  arresting,  or  inhibiting  action,  once  initiated  by 
the  necessity  of  taking  time  to  allow  of  the  operation  of 
choice,  becomes,  bit  by  bit,  detachable  from  the  opera- 
tion of  choice;  so  that,  at  length,  the  power  is  acquired 
of  arresting  or  suspending  action  irrespective  of  imme- 
diate choice.  The  action  is  arrested;  and  not  merely  is 
the  attainment  of  the  end  thereby  postponed,  but  the 
choice  itself  may  be  postponed,  and  the  end  itself  may  be 
postponed  indefinitely,  or  altogether  abandoned.  Thus 


THE  FACTORS  OF  CRIME  23 

arises  the  power  of  self-restraint,  or  self-control,  as  it  is 
called;  a  power  which,  first  exercised  in  the  most  pro- 
nounced forms  of  instinctive  action,  gradually  attains  a 
larger  sway,  until  at  length  it  prevails  even  over  those 
trifling  movements  of  facial  expression  which  are  the  in- 
separable accompaniments  of  emotion,  and  are  the  most 
difficult  acts  of  all  to  control. 

A  remarkable  character  of  action,  both  human  and 
animal,  is  that  motives  become  anticipated,  and  that 
which  was  once  a  means  to  a  further  end  comes  to  be 
pursued  as  an  end  itself.  This  is  true  in  greater  or  less 
degree  of  all  means;  and  is  true  of  the  mode  of  action 
that  we  are  now  considering.  Self-restraint  and  self- 
control  are  cultivated  as  ends  in  themselves;  the  arrest 
and  suspension  of  the  pursuit  of  ends  is  exaggerated  into 
the  abandonment  of  these  ends;  and  thus  arises  the 
practice  of  asceticism,  in  all  its  degrees  and  in  all  its 
forms.  Asceticism  is  primarily  the  renunciation  of 
pleasure;  that  is  to  say,  the  renunciation  of  instinctive 
gratifications.  It  is  the  inhibition  or  arrest  of  the  action 
by  which  pleasure  is  pursued;  and  becomes  possible  only 
by  the  power  of  self-restraint,  which  enters  into  action 
as  reason  is  applied  to  the  modification  of  instinct.  Self- 
denial  and  self-restraint,  as  ends  in  themselves,  are  no 
more  desirable  than  burying  bones,  or  ringing  church 
bells,  or  learning  Latin.  They  are  of  value  only  for  the 
ends  that  can  be  achieved  by  means  of  them,  and  as  they 
facilitate  the  achievement  of  ends.  But,  since  they  are 
the  common  condition  of  the  better  and  more  complete 
attainment  of  all  ends  of  every  description,  their  acquire- 
ment and  cultivation,  apart  from  their  application  to  any 
particular  end,  are  of  great  value  and  importance;  and 
the  practice  of  self-denial  and  self-restraint,  in  and  for 
themselves,  and  apart  from  their  application  to  any  par- 


24  CRIME  AND  CRIMINALS 

ticular  end,  is  the  practice  of  asceticism.  Any  quality 
that  is  cultivated  for  itself  alone  is  liable  to  be  cultivated 
to  excess.  As  soon  as  it  becomes  an  end  to  be  pursued 
for  its  own  sake,  its  utility  as  a  means  to  further  ends  is 
ipso  facto  forgotten  and  lost  sight  of,  and  it  may  then  be 
pursued  to  an  extent  that  actually  militates  against  the 
attainment  of  these  further  ends.  Self-denial  and  self- 
control  are  valuable  only  as  they  enable  us  to  attain,  more 
completely  than  we  could  without  them,  the  gratification 
of  instinctive  ends.  But,  in  the  cultivation  of  self-denial 
and  self-control,  this  value  is  altogether  ignored,  and 
they  are  cultivated,  often,  to  the  extent  of  delaying  or 
rendering  impossible  the  very  ends  that  their  purpose 
is  to  serve.  Nay,  they  are  cultivated  to  the  point  of  re- 
nouncing and  repudiating  these  very  ends  themselves. 
Mere  rapine,  by  the  cultivation  of  self-control,  becomes 
mitigated  into  courtship;  the  further  cultivation,  in 
excess,  of  self-control  secures  the  abolition  of  courtship 
and  of  the  end  that  courtship  is  intended  to  serve,  and 
results  in  celibacy.  The  gluttonous  orgy  of  the  savage 
becomes,  by  the  cultivation  of  self-control,  the  decorous 
and  orderly  meal  of  the  cultivated  man;  but  the  cultiva- 
tion, for  its  own  sake,  of  self-denial,  leads  to  fasting, 
which  may  become  as  great  a  danger  to  health  as  glut- 
tony. The  instant  indulgence  in  riotous  expenditure  that 
we  call  prodigality  is  restrained  by  the  cultivation  of  self- 
denial  and  replaced  by  thrift.  By  the  further  pursuit  of 
self-denial  for  its  own  sake,  and  without  regard  to  the 
end  to  be  attained  by  its  means,  thrift  is  exaggerated  into 
miserliness. 

Self-control  is  the  voluntary  renunciation  of  immediate 
gratification  for  the  sake  of  greater  subsequent  gratifica- 
tion. Self-denial  is  the  voluntary  renunciation  of  gratifi- 
cation for  its  own  sake,  as  an  end,  and  without  regard  to 


THE  FACTORS  OF  CRIME  25 

any  future  gratification  to  be  gained  thereby.  From  the 
voluntary  renunciation  of  pleasure  to  the  voluntary  en- 
during of  pain  is  but  a  short  step — it  is,  in  fact,  a  matter 
merely  of  degree,  or  even  of  nomenclature;  and  the 
voluntary  enduring  of  pain,  or  the  self-infliction  of  pain, 
is  asceticism.  At  one  end  of  the  long  chain  is  the  momen- 
tary suspension  of  the  pursuit  of  gratification,  in  order 
that  choice  may  be  made  of  the  most  effectual  mode  of 
attaining  it;  in  the  middle  is  the  dour  indifference  to 
sensual  pleasure  of  the  Puritan;  at  the  extreme  end  are 
the  .self-tortures  and  self-mutilations  of  the  Eastern  de- 
votee, who  suspends  himself  by  a  hook  passed  through 
the  muscles  of  his  back,  gazes  open-eyed  at  the  sun  from 
the  rising  up  of  the  same  until  the  going  down  thereof, 
or  takes  his  repose  in  a  barrel  set  with  spikes. 

Like  all  other  action,  criminal  action  is  prompted  by 
instinct  and  guided  by  reason.  I  do  not  say  that  its 
criminal  quality  is  in  all  cases  instinctive,  even  in  part; 
but  I  say  that  criminal  action  is  action  whose  ultimate 
purpose  is  dictated  by  instinct.  How  far  the  criminal 
means  by  which  this  purpose  is  attained  or  pursued  are 
instinctive  and  determined,  and  how  far  they  are  rea- 
soned and  dependent  on  the  choice  of  the  individual,  are 
matters  for  subsequent  inquiry.  What  we  are  now  con- 
cerned to  recognize  is  that  criminal  action,  like  all  other 
action,  is  compounded  of  the  two  factors — instinctive  im- 
pulsion, which  dictates  with  imperious  command  the  end 
that  is  to  be  pursued;  and  reasoned  action,  which  takes 
into  consideration  the  circumstances,  and  finds  such  means 
of  dealing  with  these  circumstances  as  appear  adapted  to 
attain  the  end. 


26  CRIME  AND  CRIMINALS 

THE  INTERNAL  FACTOR 
Mental  Constitution 

The  internal  factor,  as  far  as  we  have  at  present  dis- 
covered, consists,  therefore,  of  the  group  of  instincts 
inherent  in  the  actor,  and  the  degree  and  kind  of  intelli- 
gence with  which  he  is  endowed.  These  are  the  chief 
constituents  of  the  internal  factor,  but  they  are  not  all. 
Certain  others  must  now  be  considered. 

An  act  is  novel  when  it  is  done  for  the  first  time  by  the 
actor;  and  the  degree  of  novelty  is  marked  by  the  extent 
to  which  it  differs  from  the  previous  acts  of  that  actor. 
Thus,  in  speaking  of  an  act  as  novel  we  are  not  now 
considering  its  novelty  with  respect  to  acts  at  large,  or 
acts  done  by  members  of  the  human  race,  but  solely  with 
respect  to  the  acts  of  the  particular  actor  contemplated. 
So  regarded,  an  act  that  is  widely  different  from  all  pre- 
vious acts  may  be  spontaneous  or  elicited;  it  may  be 
instinctive  or  reasoned;  it  may  be  impulsive  or  deliberate, 
crude  or  elaborate,  work  or  play.  Whatever  its  other 
characters  may  be,  a  novel  act  is,  cceteris  paribus,  less 
nicely  adapted  to  the  end  in  view  than  an  act  that  is  not 
novel.  A  novel  act  is,  according  to  its  degree  of  novelty 
as  above  defined,  inferior  in  applicability  to  its  purpose 
to  an  act  that  is  not  novel.  It  is  also  less  economical  of 
effort.  It  needs  more  exertion,  both  mental  and  bodily, 
in  proportion  to  the  result,  than  an  established  act.  It 
is,  as  a  rule,  slower,  less  facile,  and  less  successful.  The 
first  efforts  of  the  chick  or  the  newborn  colt  or  calf  to 
stand  or  walk  are  made  with  manifest  effort.  They  are 
uncertain;  they  include  sprawlings  and  unnecessary  move- 
ments. They  are  not  very  successful.  The  animal  is  apt 
to  sway  about  and  fall.  Nor  is  it  only  the  first  essays  at 


THE  FACTORS  OF  CRIME  27 

instinctive  movement  that  are  thus  characterized.  The 
same  peculiarities  are  observed  in  reasoned  acts.  The 
child  learning  to  write  performs  the  action  slowly  and 
laboriously,  with  much  exertion,  with  unnecessary  move- 
ments of  its  mouth  and  tongue;  and  when  all  is  done, 
the  writing  is  not  as  good  as  that  of  the  practised  pen- 
man. So  the  novice  at  skating  sprawls  and  falls  about. 
He  uses  his  arms  as  much  as  his  legs;  he  goes  through  far 
more  exertion  than  the  practised  skater,  and  the  result 
is  much  less  successful.  He  does  not  cover  anything  like 
the^&ame  ground  in  the  same  time;  nor  can  he  execute 
the  intricate  figures  achievable  by  the  other.  So  with  him 
who  is  learning  the  bicycle,  the  typewriter,  the  musical 
instrument,  or  any  other  exercise  needing  complicated 
action.  The  first  efforts  are  awkward ;  they  include  many 
unnecessary  movements;  they  include  many  wrong 
movements;  they  are  slow;  they  are  attended  by  much 
voluntary  effort;  and  the  result  is  inferior  in  accuracy  to 
that  achieved  by  the  expert. 

As  the  action  is  repeated,  it  loses  these  characters  with 
the  frequency  of  repetition.  The  more  often  it  is  re- 
peated, the  more  facile  it  becomes,  the  less  of  extraneous 
and  unnecessary  movement  enters  into  it,  the  more  rapidly 
and  accurately  it  is  performed,  the  fewer  the  failures 
and  the  better  the  result.  When  an  act  has  been  repeated 
sufficiently  often,  it  merges  from  the  habitual  into  the 
automatic,  and  the  distinction  is  marked  not  so  much  by 
the  greater  facility  and  accuracy  of  the  automatic  move- 
ment, as  by  the  degree  to  which  it  becomes  independent 
of  the  exertion  of  the  will  for  its  continuance.  As  a  rule, 
it  needs  an  exertion  of  will  for  its  initiation;  but,  once 
started,  the  movements  continue  mechanically,  and  any 
intrusion  of  volition  into  their  performance  rather  hind- 
ers and  impairs  than  increases  their  efficacy.  When  we 


28  CRIME  AND  CRIMINALS 

start  for  a  walk,  we  do  so  by  an  exertion  of  will;  but, 
once  the  action  is  initiated,  we  do  not  attend  to  the  move- 
ments of  our  legs,  and  any  attempt  to  regulate  the  length 
of  the  stride  or  the  position  of  the  feet  by  an  exertion 
of  the  will  is  an  embarrassment  and  a  hindrance  to  the 
facile  performance  of  the  act.  It  is  the  same  in  any 
action  that  is  become  automatic  by  long  continuance. 
Whether  it  is  playing  a  musical  instrument,  or  bicycling, 
or  typewriting,  or  skating,  or  any  other  complicated 
movement  that  has  once  been  so  thoroughly  acquired  as 
to  be  automatic,  volition  is  needed  for  its  initiation  only; 
and,  when  once  it  is  started,  any  further  intervention  of 
the  will  impairs  the  speed  and  accuracy  of  the  perform- 
ance. In  this  respect  an  automatic  act  is  involuntary;  that 
is  to  say,  the  several  movements  of  which  it  is  composed 
are  involuntary,  in  the  sense  of  not  being  actuated  by  sep- 
arate exertions  of  the  will;  though  the  whole  action  is 
voluntary,  in  the  respect  that  it  is  initiated,  continued, 
and  terminated  by  voluntary  exertion.  Nevertheless,  if 
the  attention  is  distracted  and  the  will  falls  into  abey- 
ance, the  movement  may  continue  without  any  very  active 
exertion  of  will,  perhaps  without  any  at  all.  The  mech- 
anism, once  set  in  action,  continues  to  act,  as  a  clock  con- 
tinues to  go,  without  any  further  interference  from  out- 
side. To  alter  or  to  arrest  it  requires  exertion  of  will, 
but  to  continue  it  needs  little  or  none.  Hence  such  actions 
may  proceed  in  the  abeyance  or  absence  of  consciousness. 
In  the  unconscious  state  of  post-epileptic  automatism,  elab- 
orate acts  of  the  automatic  class  are  done,  without,  as 
far  as  can  be  ascertained,  any  consciousness  at  all  on  the 
part  of  the  actor. 

The  similarity  between  automatic  action  and  instinctive 
action  will  not  have  escaped  the  notice  of  the  reader. 
Action  that  is  thoroughly  automatic  is  determinate. 


THE  FACTORS  OF  CRIME  29 

When  a  person  has  learned  a  verse  of  poetry  so  thor- 
oughly that  its  utterance  is  become  automatic,  its  utterance 
is  determinate,  and,  once  begun,  will  not  vary  from  time 
to  time,  but  will  always  be  repeated  in  the  same  words. 
The  operations  of  undressing  and  of  dressing,  when  they 
are  become  automatic,  are  undertaken  in  the  same  order 
and  performed  in  the  same  way.  The  man  who  is  accus- 
tomed daily  to  compare  his  watch  with  a  standard  clock 
as  he  goes  to  his  work,  will  do  so  at  last  automatically 
when  he  comes  to  the  accustomed  spot,  and  will  perhaps 
notJtnow,  the  moment  after,  that  he  has  done  so.  We 
can  predict  that  at  that  spot  he  will  take  his  watch  out 
and  look  at  it.  Indeed,  some  acts,  such  as  walking,  may 
be  regarded  from  one  point  of  view  as  automatic,  from 
another  as  instinctive;  the  fact  being  that  the  facile  per- 
formance of  an  act  is  conditioned  by  the  existence  of  a 
nervous  mechanism  whose  activity  actuates  the  move- 
ments that  compose  the  act;  and  the  difference  between 
instinctive  action  and  automatic  action  is  that,  in  the 
former,  the  mechanism  is  inherited  ready  formed,  as  the 
structure  of  the  arm  and  the  eye  are  inherited  ready 
formed,  while  the  mechanism  of  the  automatic  act  must 
be  laboriously  constructed  by  the  exertions  of  the  in- 
dividual, just  as  the  lever  and  the  lens  must  be  con- 
structed before  they  can  be  used.  For  this  reason,  auto- 
matic action  is  never  as  completely  mechanized  as 
instinctive  action.  It  remains  to  the  end  more  modifiable, 
less  certainly  predictable,  less  rigid,  especially  in  detail. 
Yet  that  it  does,  in  cases,  attain  a  high  degree  of  mech- 
anization is  seen  in  the  extreme  difficulty  that  is  found  in 
breaking  a  person  off  a  bad  style  of  doing  a  thing.  One 
who  has  once  thoroughly  acquired  an  erroneous  style  of 
performance  can  scarcely  ever  be  diseducated  and  re- 
educated into  a  good  style.  The  provincial  accent  learned 


30  CRIME  AND  CRIMINALS 

in  childhood  clings  to  the  man  to  extreme  old  age,  in 
spite  of  his  efforts  to  correct  it. 

The  internal  factor  by  which  action  is  prompted  and 
regulated  is  therefore  compound.  It  includes,  first,  a 
group  of  instincts  and  instinctive  desires,  properly  so- 
called,  that  are  inherited  by  each  man  from  his  ancestry, 
and  are  the  same  in  all  men,  though  not  equally  strong, 
either  absolutely  or  relatively  to  one  another.  Every 
man  possesses  in  some  degree  the  instincts  of  self- 
preservation,  of  sexual  attraction,  of  social  attraction,  of 
recreation,  of  curiosity,  and  so  on,  and  every  woman 
the  instinct  of  maternity.  Every  man  possesses  also  the 
minor  instincts  subsidiary  to  these,  such  as  resentment 
of  injury  pugnacity,  emulation,  sympathy,  conformity, 
jealousy,  and  so  forth;  but  the  strength  of  these  several 
instincts  varies  very  widely  in  different  persons,  so  that 
no  two  have  precisely  the  same  make-up  or  constitution 
of  instinctive  motives.  All  possess  the  same  group,  but 
in  some  one  instinct  or  set  of  instincts  will  be  dominant 
or  powerful  and  another  subordinate  or  weak,  while  in 
others  the  dominant  or  powerful  will  be  a  different  set 
and  the  weaker  will  be  a  different  set.  In  some  people 
some  instincts  are  so  attenuated  as  to  be  almost  evanes- 
cent. 

In  the  second  place,  the  intellectual  make-up  or  con- 
stitution of  every  person,  which  is  the  second  ingredient 
in  the  internal  factor  of  his  conduct,  while  it  has  much  in 
common  with  that  of  every  other  person,  yet  in  its 
precise  combination  is  peculiar  to  himself.  In  grade  he 
may  be  of  brilliant  intellect,  or  dull,  or  feebleminded,  or 
imbecile,  or  idiotic;  and,  even  if  brilliant,  his  brilliancy 
may  show  itself  in  one  of  many  directions:  his  intellect 
may  be  preponderatingly  inductive  or  deductive;  his 
ability  may  be  in  practical  affairs  or  in  abstract  specula- 


THE  FACTORS  OF  CRIME  31 

tion;  his  bent  may  be  to  discovery,  or  to  invention,  or 
to  classification,  to  the  investigation  of  the  mechanics 
of  dead  matter,  or  to  the  habits  of  living  things;  his 
ability  may  be  in  the  acquisition  of  languages  or  in  the 
construction  of  clocks.  Whatever  the  degree  or  amount 
of  his  native  ability,  and  whatever  the  bent  of  his  genius, 
his  tastes,  his  interests,  they  all  form  a  part  of  his  general 
make-up  or  constitution  or  temperament,  they  all  con- 
tribute to  the  composition  of  the  internal  factor  in  his 
conduct. 

In  the  third  place,  the  degree  in  which  he  is  prone  to 
self-indulgence  on  the  one  hand  or  self-restraint  on  the 
other  is  an  important  ingredient  in  the  internal  factor 
of  his  conduct.  It  is  manifest  that  it  will  take  an  im- 
portant part  in  the  determination  of  his  conduct  on  many 
occasions,  and  may  be  a  dominating  factor  in  his  conduct. 

In  the  fourth  place,  and  lastly,  a  very  important 
portion  of  the  internal  factor  in  conduct  at  any  time  of 
life  lies  in  the  habits  and  automatisms  that  the  person 
has  acquired  in  the  previous  part  of  his  life.  All  that 
very  extensive  domain  of  conduct  that  consists  in  or 
depends  upon  writing  is  impossible  for  those  who  have 
never  learned  to  write;  that  which  consists  in  or  depends 
upon  reading,  riding,  playing  on  musical  instruments, 
drawing,  painting,  fly-fishing,  and  a  thousand  other  arts 
and  crafts,  is  impossible  to  those  who  have  never  ac- 
quired the  habits  and  automatisms  concerned  in  them, 
and  is  modified  by  the  kind  of  habits  and  automatisms 
acquired,  and  by  the  degree  in  which  they  have  been  ac- 
quired. Conduct  as  a  whole,  and  each  several  depart- 
ment of  conduct,  is  profoundly  modified  by  this  constit- 
uent of  the  internal  factor. 


32  CRIME  AND  CRIMINALS 

THE  EXTERNAL  FACTOR 
Opportunity  and  Temptation 

The  external  factor  in  action  consists,  of  course,  of 
the  circumstances  in  which  the  actor  is,  and  that  act 
upon  him  and  control,  elicit,  or  modify  his  action.  They 
may  be  divided  for  the  present  purpose  into  two  groups : 
the  one  consisting  of  the  circumstances  that  have  acted 
in  the  past,  and  that  have  taken  their  share,  often  a  large 
share,  in  modifying  the  internal  factor. 

The  tendencies  to  action  of  every  man  and  woman 
are,  as  we  have  seen,  due  partly  to  inherited  instincts  and 
aptitudes,  partly  to  habits  and  automatisms;  and  the 
habits  and  automatisms  are  due  to  action  in  circum- 
stances, and  are  profoundly  modified,  and  in  large  degree 
created,  by  circumstances.  Every  one  but  a  fanatic 
blinded  by  prejudice  and  preconceived  dogma  must  admit 
the  large  and  important  share  that  education,  training, 
and  upbringing  have  in  constituting  what  I  have  called 
the  make-up  or  temperament,  what  is  often  called  the 
character  or  the  disposition,  of  a  person.  He  who  has 
learned  to  read  and  write  will  act  every  day  on  fifty  oc- 
casions differently  from  him  who  has  not;  and  the  dif- 
ference in  the  mode  of  action  depends  much  less  upon 
even  '  such  important  accomplishments  as  reading  and 
writing  than  upon  the  ideals  that  have  been  inculcated 
and  the  moral  tone  that  has  been  imparted  by  education 
and  training.  The  brutality,  treachery,  greed,  and 
slavish  subservience  to  authority  that  are  characteristic 
of  the  German  are  no  doubt  in  part  racial,  innate,  and 
inherited  from  an  ancestry  in  which  the  same  characters 
predominated;  but  they  are  in  larger  part,  probably  in 
much  larger  part,  due  to  systematic  training  and  incul- 


THE  FACTORS  OF  CRIME  33 

cation  from  early  youth,  just  as  the  spirit  of  loyalty  and 
freedom  of  the  English  public-school  boy  are  due  to  no 
innate  proclivities,  but  are  inculcated  and  fostered  by  his 
training. 

So  it  is  with  the  restraints  of  morality  that  militate 
against  criminal  action.  They  are  to  some  extent  innate 
instincts  inherited  from  an  ancestry  that  has  for  count- 
less generations  lived  a  social  life  for  which  the  fund- 
amental restraints  of  morality  are  vitally  necessary. 
Morality  is  social  adaptation.  Animals,  or  men  either, 
tha^-live  solitary  and  are  parts  of  no  social  system  have 
no  need  of  morality,  and  no  opportunity  of  being  either 
moral  or  immoral.  Morality  and  immorality  are  terms 
without  meaning  except  in  relation  to  the  social  state; 
and  man  has  lived  for  so  many  generations  in  the  social 
state,  his  survival  has  depended  so  predominantly  upon 
the  maintenance  in  its  integrity  of  the  social  body  to 
which  he  has  belonged,  that  his  instincts  as  well  as  his 
inclinations  are  become  adapted  to  the  social  state.  The 
adaptation  is  not  complete,  or  there  would  be  no  crim- 
inals. It  is  as  yet  very  imperfect,  and  criminality  is  one 
manifestation  of  its  imperfection;  but  it  is  begun,  and 
has  proceeded  to  an  extent  which  varies  much  in  different 
people.  In  the  philanthropist  the  instinct  is  well  de- 
veloped, though  its  guidance  by  reason  is  often  sadly 
defective.  In  the  criminal  the  instinct  seems  to  be  in 
some  cases  wholly  absent,  in  many  but  little  developed, 
and  in  some,  in  whom  it  may  have  been  moderately 
developed,  it  is  swamped  and  overborne  by  vicious 
training  and  habitual  self-indulgence.  But  even  in  norm- 
ally constituted  persons,  in  whom  the  social  instinct  or 
instincts  are  developed  up  to  the  existing  standard  of 
the  race,  they  are  not  of  themselves  sufficiently  strong 
to  keep  their  possessor  in  the  path  of  rectitude.  They 


34  CRIME  AND  CRIMINALS 

need  to  be  supplemented  by  other  influences;  and  this  has 
been  recognized  in  practice  in  every  society  that  has 
survived  and  prevailed.  The  chief  of  these  influences 
are  custom  and  religion,  and  both  depend  for  their 
efficacy  upon  training,  especially  in  early  life,  when  the 
character  is  plastic  and  easily  retains  what  is  impressed 
upon  it.  In  the  absence  of  a  moral  training,  a  high 
degree  of  morality  is  impossible,  an  ordinary  degree  is 
not  to  be  expected  except  in  exceptional  natures  in  which 
the  moral  instinct  is  unusually  strong;  and  without  this 
training,  the  person  of  average  moral  instinct  is  a  ready- 
made  criminal  in  posse.  It  may  be  that  the  training,  so 
far  from  strengthening  and  reinforcing  the  innate  re- 
straint of  morality,  is  in  the  opposite  direction,  as  in 
Fagin's  school  for  thieves.  Rarely,  but  occasionally, 
such  schools  are  discovered  now,  and,  short  of  the  de- 
liberate teaching  of  the  young  to  steal,  the  mere  associa- 
tion of  criminals  with  one  another  reinforces  and  con- 
firms in  each  one  the  tendency  and  habit  to  commit  crime. 
It  was  the  discovery  of  this  result  of  associating  criminals 
with  one  another,  and  with  persons,  especially  young 
persons,  who  were  not  as  yet  criminals  before  the  as- 
sociation, that  more  than  anything  else  led  at  length  to 
the  tardy  reform  of  our  prison  system.  Every  prison  in 
which  criminals  and  non-criminals  were  indiscriminately 
mingled  together  was  found  to  be  a  nursery  and  school 
of  criminals;  but  it  is  evident  that  in  this  way  circum- 
stances act,  not  as  a  direct  factor  in  producing  action  of 
a  certain  kind,  but  indirectly  by  reinforcing  or  weaken- 
ing the  internal  factor.  Training  and  education  go  to 
modify  the  disposition  of  the  trained  and  educated 
person.  They  produce,  not  separate  and  individual  acts, 
but  a  modification  of  the  way  of  acting.  They  make 
possible  and  easy  ways  of  acting  that  without  them 


THE  FACTORS  OF  CRIME  35 

would  be  impossible  or  difficult.  In  short,  they  modify 
the  internal  factor.  They  alter  the  nature  and  disposi- 
tion of  a  person,  and  render  him  more  likely  or  less 
likely  to  commit  crime  on  a  given  occasion  and  in  given 
circumstances;  but  in  thus  regarding  them  we  regard 
them  as  contributing  to  the  general  constitution,  dis- 
position, temperament,  or  make-up  of  the  person,  and 
not  as  affording  occasion  and  circumstances  for  any  in- 
dividual crime.  This  is  not  what  is  meant  by  the  external 
factor  in  action. 

The  external  factor  in  action  consists  of  the  circum- 
stances in  which  the  action  takes  place;  and  it  is  evident 
that  these  circumstances  are  as  important  and  as  neces- 
sary to  all  action,  and  to  every  special  kind  of  action,  as 
the  disposition  of  the  actor;  and  that  their  influence  is 
complementary  to  that  of  the  internal  factor  in  the  pro- 
duction of  every  kind  of  action,  and  therefore  of  crime. 
However  ardently  a  man  may  desire  to  catch  fish,  he 
cannot  do  so  where  there  is  no  water.  If  fishing  were 
a  crime,  it  would  be  a  crime  of  which  the  Arab  of  the 
Sahara  could  not  be  guilty,  however  strongly  his  instinct 
and  training  urged  and  impelled  him  to  fish.  In  the 
same  circumstances  the  most  accomplished,  assiduous, 
and  enthusiastic  burglar  could  not  follow  the  profession 
of  burglary.  Nor  could  he  follow  it  if  he  were  trans- 
ferred to  the  North  or  the  South  Pole.  Burglary  cannot 
be  committed  where  there  are  no  houses;  and  even  if 
there  were  houses  at  the  Poles,  burglary  would  be  im- 
possible for  six  months  in  the  year,  for  burglary  is  a 
nocturnal  crime,  and  at  the  Poles  for  six  months  in  the 
year  there  is  no  night.  Without  going  as  far  afield  as 
this  for  instances,  it  is  manifest  that  crime  depends  as 
much  on  the  external  circumstances  as  on  the  internal 
disposition  of  the  criminal.  The  external  factor  is, 


36  CRIME  AND  CRIMINALS 

upon  the  whole,  as  important  as  the  internal  factor,  and 
should  be  as  much  taken  into  account  in  tracing  the  origin 
of  crime.  Certain  crimes  have  died  out,  and  are  no 
longer  practised,  because  the  circumstances  that  made 
them  possible,  or  easy,  or  profitable,  have  ceased  to  exist. 
Fagin's  pupils  were  taught  to  steal  silk  handkerchiefs 
from  gentlemen's  tail-pockets,  but  no  thief  now  steals 
silk  handkerchiefs  from  gentlemen's  tail-pockets.  For 
one  thing,  tail-pockets  are  gone  out  of  fashion;  for 
another,  silk  handkerchiefs  are  gone  out  of  fashion 
together  with  the  snuff-taking,  which  made  them  desir- 
able; for  a  third,  silk  handkerchiefs  no  longer  have  the 
value  they  had  in  Fagin's  day.  If  it  were  easy  to  steal 
them,  it  would  no  longer  be  worth  while;  so  the  stealing 
of  silk  pocket-handkerchiefs  is  gone  out  of  fashion.  In 
the  seventeenth  and  eighteenth  centuries  the  profession 
of  a  highwayman  stood  at  the  head  of  all  the  furtive 
occupations.  It  was  an  extremely  profitable  and  ex- 
tremely frequent  mode  of  robbery.  Every  heath  on  the 
outskirts  of  London — Blackheath,  Hampstead  Heath, 
Hounslow  Heath — had  its  gang  of  highwaymen;  and 
the  robbery  of  a  mail-coach  was  of  weekly  occurrence. 
Mail-coaches  are  not  robbed  now,  and  highwaymen  are 
as  extinct  as  the  great  auk;  and  the  reason  is  manifest. 
The  circumstances  necessary  for  the  execution  of  the 
crime  no  longer  exist.  In  the  third  quarter  of  the  last 
century  there  was  a  brief  period  of  a  few  months  in 
which  garrotting  was  a  fashionable  crime.  It  soon 
ceased,  for  the  activity  of  the  police  and  the  enactment 
of  the  punishment  of  flogging  soon  put  a  stop  to  it.  In 
the  eighteenth  and  the  early  part  of  the  nineteenth  cen- 
turies smuggling  was  probably  the  most  frequent  of  all 
crimes.  Practically  the  whole  population  for  a  breadth 
of  several  miles  round  the  southern  coast  of  this  country 


THE  FACTORS  OF  CRIME  37 

was  concerned  in  smuggling  or  in  assisting  or  conniving 
at  smuggling;  but  it  is  now  among  the  rarest  of  crimes, 
and  why?  Because  the  removal  of  duties  from  a  great 
multitude  of  commodities  has  made  smuggling  no  longer 
profitable.  In  each  of  these  cases  the  influence  of  favor- 
ing circumstances  on  the  commission  of  crime  is  para- 
mount. It  is  gross  as  a  mountain,  open,  palpable;  and 
yet,  in  treating  of  the  origin  of  crime,  writers  have  en- 
tirely ignored  the  external  factor  in  its  production.  They 
have  gone  about  to  seek  for  the  origin  of  crime  in  all 
kinds  of  internal  factors,  most  of  them  purely  imaginary, 
and  have  resolutely  shut  their  eyes  to  the  external  factor, 
which  is  in  every  case  a  most  important  determinant,  and 
is  in  some  cases,  as  in  that  of  smuggling,  practically  the 
sole  determinant. 

For,  as  I  have  said,  smuggling  was  practised,  or 
assisted,  or  connived  at,  by  practically  the  whole  popula- 
tion of  the  area  in  which  smuggling  could  be  carried  on. 
Every  fisherman  was  a  smuggler,  either  regularly  and  by 
profession  or  casually  and  occasionally  as  opportunity 
served.  Every  inhabitant  of  a  fishing  village  was  eager 
to  gather  information  as  to  the  movements  of  the  excise- 
men and  to  keep  the  smugglers  informed  of  them.  Every 
lady  in  the  district  looked  to  the  smugglers  for  her  tea, 
her  silk,  and  her  lace;  and  every  gentleman  depended 
on  them  for  his  tobacco  and  his  brandy.  The  clergy 
acquiesced  in  a  system  from  which  they  profited,  and 
which  they  had  neither  the  power  nor  the  wish  to  alter. 
The  very  magistrates  whose  duty  it  was  to  enforce  the 
law,  suppress  the  crime,  and  commit  the  criminal,  evaded 
their  duty  and  reaped  their  reward.  Some  of  them,  it 
was  alleged,  embarked  their  capital  in  the  business.  If 
the  doctrines  of  the  Continental  criminologists  are  true, 
we  must  admit  that  every  man  and  woman,  and  even 


38  CRIME  AND  CRIMINALS 

many  children,  within  some  miles  of  the  southern  coast 
of  England  was  marked  with  the  stigmata  of  the  crim- 
inal. All  their  heads  were  misshapen.  They  were  oxy- 
cephalic  or  brachycephalic.  All  their  noses  were  too 
long  or  too  short;  all  their  chins  projected  or  receded; 
all  their  foreheads  were  high  or  low,  or  bulging,  or 
receding;  the  men  had  no  beards  and  had  a  peculiar 
air  of  bonhomie,  the  women  had  angelic  faces  or  were 
small  and  pale  and  haggard.  They  were  all  stupid,  in- 
exact, lacking  in  foresight,  and  astoundingly  imprudent. 
They  were  cunning,  hypocritical,  delighting  in  falsehood. 
They  all  talked  slang,  and  tattooed  themselves,  and  so 
forth  and  so  on;  and  they  owed  their  proclivity  for 
smuggling  to  these  peculiarities,  or  to  the  same  inherit- 
ance that  endowed  them  with  these  peculiarities,  and  not 
in  the  least  to  the  facility  and  general  impunity  with 
which  smuggling  could  be  practised.  Well,  as  old  Herod- 
otus says,  if  any  one  can  believe  this,  by  all  means  let 
him  do  so;  for  my  part,  I  do  not  find  it  easy.  We  must 
ask  ourselves  what  happened  when  the  customs  duties 
for  most  commodities  were  abolished,  smuggling  ceased, 
and  the  criminal  population  returned  to  virtuous  ways  of 
life.  Did  their  heads  assume  a  normal  shape?  Did 
their  noses  alter  in  length  and  elevation?  Did  the  re- 
ceding chins  come  out  and  the  projecting  chins  go  in? 
Did  the  bulging  foreheads  recede  and  the  receding  fore- 
heads advance?  Did  the  men's  beards  begin  to  grow 
and  their  peculiar  air  of  bonhomie  disappear?  Did  the 
angelic  faces  of  the  women  become  human,  or  even  dia- 
bolic, and  did  their  figures  swell  out  and  their  complex- 
ions improve?  Did  both  men  and  women  lose  their 
stupidity,  their  inexactness  and  imprudence,  and  become 
clever,  exact,  and  prudent?  Did  they  cease  to  talk 
slang,  and  did  they  erase  their  tattoo  marks?  Did  they, 


THE  FACTORS  OF  CRIME  39 

in  short,  revise  their  parentage,  and  become  descended 
from  an  entirely  new  line  of  ancestry?  Did  they  find 
that  they  had  all  been  changed  at  birth?  It  appears  that 
if  the  doctrines  of  Lombroso,  Garofalo,  and  the  rest  of 
the  Continental  criminologists  are  true,  they  ought  to 
have  done  so;  but  did  they? 

Or,  if  we  follow  a  subsequent  school,  we  must  sup- 
pose that  all  these  people  became  engaged  actively  or 
passively  in  the  occupation  of  smuggling  because  they 
were  brought  up  in  bad  sanitary  conditions.  They  were 
poor^  they  were  ill-housed,  they  were  uneducated,  they 
were  brought  up  in  slums,  they  were  ill-fed,  and  so 
forth.  No  doubt  sanitation  was  less  carefully  observed 
in  those  days  than,  in  these ;  but  in  this  matter  the  popula- 
tion of  the  whole  country  lived  under  much  the  same 
conditions,  and  the  smugglers  were  restricted  to  the  mari- 
time counties. 

There  is  no  need,  therefore,  of  the  voluminous  statis- 
tics accumulated  for  so  many  years  by  the  prison  offi- 
cials, and  digested  and  elaborated  with  such  labor  by 
Dr.  Goring,  to  disprove  the  absurd  assumptions  of  the 
Continental  school  and  the  equr'ly  absurd  assumptions  of 
the  environmental  school  of  criminologists.  The  chief 
result  of  these  statistics  is  the  disproof  of  these  two  doc- 
trines, and  to  achieve  these  results  the  statistics  are  labor 
thrown  away.  A  very  moderate  acquaintance  with  the 
history  of  crime  is  enough  to  disprove  them  completely 
and  finally,  without  any  aid  from  statistics;  and  a  very 
moderate  amount  of  consideration  is  enough  to  show  that 
no  one  but  those  who  put  their  minds  in  blinkers  could 
possibly  entertain  either  of  the  doctrines.  They  have 
no  plausibility,  and  make  no  appeal  except  to  those  who 
resolutely  cull  instances  that  seem,  however  slightly  and 
partly,  to  accord  with  them,  and  who  resolutely  shut 


40  CRIME  AND  CRIMINALS 

their  eyes  to  the  immense  number  of  prominent  and 
striking  instantia  contradictoria.  The  two  doctrines  are 
now  of  interest  only  as  showing  the  eager  gullibility  with 
which  the  general  public,  and  not  only  the  general  public, 
but  grave  professors  who  devote  their  lives  to  a  study, 
will  swallow  the  grossest  absurdities  without  any  attempt 
to  examine  them  critically. 

Rightly  estimated,  the  external  factor  is  a  most  im- 
portant factor  in  the  commission  of  crime;  and,  rightly 
estimated,  its  direct  influence,  as  distinguished  from  that 
indirect  influence  in  modifying  the  make-up  of  the  crim- 
inal that  we  have  already  considered,  is  twofold,  or 
rather  it  exists  in  two  degrees — as  affording  opportunity, 
and  as  presenting  temptation.  Given  a  constitutional 
make-up  or  disposition  to  which  crime  is  possible,  then, 
whether  crime  will  or  will  not- be  committed  must  depend 
in  the  first  place  on  whether  there  is  opportunity  for  its 
commission,  and  in  the  second  on  the  strength  of  the 
temptation  that  the  opportunity  presents.  Without  op- 
portunity for  crime  there  can  be  no  crime.  That  is 
axiomatic.  It  needs  no  proof,  for  it  carries  its  truth  in 
the  face  of  it.  A  man  at  sea  cannot  cut  down  fruit  trees, 
damage  fences,  steal  a  horse  and  cart,  or  fire  a  stack  of 
wheat.  A  pirate,  however  confirmed  in  his  piracy,  can- 
not commit  true  piracy  at  Nottingham  or  Derby,  though 
no  doubt  in  either  place  he  could  "  pirate  "  books,  or 
inventions,  or  trade  marks;  nor  could  he  in  those  places 
scuttle  a  ship  or  commit  any  maritime  offence,  any  more 
than  in  the  Sahara  he  could  commit  a  burglary,  or  among 
the  naked  aborigines  of  the  Amazon  pick  a  pocket.  For 
crime  to  be  committed  there  must  be  opportunity.  The 
conditions  necessary  for  the  crime  must  be  present.  All 
this  is  of  course  very  obvious,  but  my  researches  in  vari- 
ous fields  have  taught  me  that  it  is  the  obvious  that  is 


THE  FACTORS  OF  CRIME  41 

overlooked,  and  that  many  of  the  grossest  and  most  prev- 
alent errors  of  doctrine  are  due  to  blindness  to  the  ob- 
vious. It  is  obvious  that  madness  consists,  not  in  what 
a  man  thinks,  but  in  what  he  says  and  does;  but  it  has 
taken  me  thirty  years  to  compel  alienists  to  admit  it.  It 
is  obvious  that  there  are  more  verbs  in  every  language 
than  the  verb  "  to  be;"  but  for  ten  years  I  have  tried  to 
convince  logicians  that  there  are,  and  I  have  failed  com- 
pletely. It  will  no  doubt  take  twenty  more  years  to  con- 
vince them.  It  is  obvious  that  a  state  of  mind  that  is 
unconscious  is  not  a  state  of  mind,  any  more  than  a  solid 
bocfy  that  offers  no  resistance  is  a  solid  body.  It  is 
nothing.  The  words  are  without  meaning.  Yet  books, 
many  books,  have  been  written  about  the  unconscious 
mind,  many  learned  societies  have  discussed  it,  and  many 
sick  people  have  suffered  torment  and  degradation  at 
the  hands  of  physicians  who  have  built  their  practice  on 
the  doctrine  of  the  unconscious  mind.  I  make  no  apol- 
ogy, therefore,  for  insisting  upon  what  is  obvious. 

The  external  factor  in  the  genesis  of  crime  is  the  cir- 
cumstances that  favor  the  commission  of  crime ;  and  these 
circumstances  are  presented  in  two  aspects  to  the  criminal 
in  posse.  They  may  present  themselves  as  opportunity 
or  as  temptation,  and  the  difference  between  opportunity 
and  temptation  is  this:  opportunity  is  absolute.  It  is 
independent  of  the  nature  and  disposition  of  the  person 
to  whom  it  is  presented.  It  is  independent  even  of  the 
existence  of  any  person.  It  consists  in  the  existence  of 
circumstances  which  make  a  crime  possible,  and  especially 
of  such  as  would  render  a  crime  easy,  if  there  were  a 
criminal  handy  to  take  advantage  of  them.  Still,  op- 
portunity does  not  imply  the  presence  of  a  criminal,  or 
his  knowledge,  or  the  knowledge  of  any  one,  of  the 
•circumstances  that  afford  the  opportunity.  If  the  cir- 


42  CRIME  AND  CRIMINALS 

cumstances  are  such  and  such,  they  afford  opportunity 
for  crime,  and  they  still  afford  opportunity  whether  there 
is  or  is  not  any  one  ready  to  take  advantage  of  it,  and 
whether  there  is  or  is  not  any  one  who  knows  of  it.  Op- 
portunity is  not  necessarily  relative  to  person. 

It  is  otherwise  with  temptation.  Temptation  is  strictly 
and  solely  relative  to  the  person  tempted.  It  consists 
in  circumstances  that  constitute  an  allurement  to  some 
particular  person  or  persons,  or  some  kind  of  persons,  to 
commit  a  crime.  To  some  persons  opportunity  is  temp- 
tation. The  same  circumstances  that  afford  opportunity 
constitute  temptation  also ;  but  not  unless  they  are  known 
to  the  tempted  person.  Opportunity  is  opportunity, 
whether  it  is  known  or  not;  but  opportunity  does  not  be- 
come temptation  until  it  is  known ;  and,  even  when  known, 
it  may  still  remain  only  opportunity  and  not  become 
temptation,  for  temptation  is  strictly  relative  to  the  per- 
son tempted,  and  that  opportunity  that  is  temptation  to 
one  may  be  no  temptation  to  another.  Moreover,  there 
can  be  no  temptation  where  there  is  no  opportunity. 
What  is  to  be  remembered  is  that  both  opportunity  and 
temptation  are  furnished  by  the  circumstances.  They 
constitute  the  external  factor  in  crime,  and  are  as  neces- 
sary to  crime  as  is  the  internal  disposition  of  the  criminal. 

An  unfastened  window  on  the  ground  floor  of  a  house, 
especially  of  an  unoccupied  house,  constitutes  an  oppor- 
tunity for  housebreaking  and  burglary,  and  constitutes 
this  opportunity  whether  there  is  or  is  not  any  criminally 
disposed  person  to  take  advantage  of  it,  and  whether 
the  circumstance  is  known  to  any  one  or  not.  The  op- 
portunity is  absolute.  It  is  there  in  any  case,  and  is  not 
relative  to  any  person.  To  an  ordinary  moral  and  law- 
abiding  person  it  is  no  temptation.  He  may  notice  it, 
and  recognize  that  it  constitutes  an  opportunity  for 


THE  FACTORS  OF  CRIME  43 

housebreaking  or  burglary,  but  it  does  not  tempt  him  to 
commit  either  crime,  for  towards  these  crimes  he  has  no 
disposition.  To  a  pickpocket,  the  circumstances,  if  they 
were  known  to  him,  would  afford  not  only  opportunity 
but  also  temptation.  He  is  already  accustomed  to  com- 
mit crime  and  to  help  himself  to  the  property  of  other 
people,  and  hence  his  internal  disposition  inclines  to- 
wards taking  advantage  of  any  opportunity  of  so  acquir- 
ing property;  but  to  him  the  temptation  is  not  strong. 
He  is  unrestrained  by  any  instinct  or  training  of  morality, 
but^-he  is  not  inclined  towards  the  crime  by  habit,  and 
his  disposition  does  not  include  the  necessary  courage. 
He  is  tempted,  but  he  is  not  very  strongly  tempted.  He 
may  even  be  constrained  by  considerations  of  morality. 
Human  nature  is  so  queerly  constituted  that  there  are 
many  criminals,  accustomed  to  commit  crime  of  one  kind, 
and  who  never  trouble  themselves  about  the  wrongness 
of  this  kind  of  crime,  and  may  even  persuade  themselves 
by  some  sophistry  that  it  is  not  wrong,  who  yet  would 
regard  crimes  of  a  different  kind  as  wrong,  and  would 
be  restrained  by  morality  from  committing  them.  In  ex- 
perience we  find  that  a  pickpocket  is  never  a  housebreaker 
or  burglar,  and  therefore  we  may  be  pretty  sure  that, 
though  the  knowledge  of  an  unfastened  window  on  the 
ground  floor  of  an  unoccupied  house  might  constitute 
something  of  a  temptation  to  a  pickpocket,  it  would  not 
be  a  very  powerful  temptation.  But  to  a  professional 
burglar  the  temptation  would  be  irresistible,  nor  would 
he  make  any  effort  to  resist  it,  except  to  postpone  to  a 
more  convenient  time  the  act  taking  advantage  of  the 
opportunity.  To  him  the  circumstance  would  afford  both 
opportunity  and  temptation,  for  he  has  the  disposition, 
the  internal  factor,  which  converts  opportunity  into 
temptation.  Temptation  is  relative  to  disposition,  and 


44  CRIME  AND  CRIMINALS 

that  circumstance  which  is  strong  temptation  to  one  is 
but  weak  temptation  to  another,  and  no  temptation  at  all 
to  a  third. 

Opportunity  may,  as  we  have  found,  exist  without 
being  known,  may  be  known  without  affording  tempta- 
tion. We  are  now  to  notice  that  the  knowledge,  or  at 
least  the  possibility,  of  opportunity  is  necessary  to 
temptation.  A  burglar  or  a  jewel  thief  may  view  the 
magnificent  Crown  jewels  in  the  Tower,  and  may  very 
strongly  desire  to  possess  them;  but  this  desire  is  not 
temptation.  Temptation  consists,  not  in  desire,  but  in 
the  appeal  made  to  desire  by  circumstances,  and  in  these 
circumstances  the  possibility  at  least  of  success  is  a  neces- 
sary constituent  in  the  temptation.  As  long  as  the  burg- 
lar considers  it  possible  that  he  may  steal  the  Crown 
jewels,  as  long  as  he  is  meditating  and  casting  about  for 
opportunity  to  steal  them,  they  are  a  temptation  to  him; 
but  when  he  finally  makes  up  his  mind  that  it  is  "  no  go," 
that  they  are  beyond  his  reach,  that  there  is  no  chance 
of  his  stealing  them,  it  would  be  a  misnomer  to  speak 
of  them  as  a  temptation  to  him.  Temptation  is  tempta- 
tion to  act,  and  if  action  in  pursuit  of  the  object  is  seen 
to  be  impossible,  then,  though  the  desire  may  persist, 
the  temptation  is  removed.  Temptation  is  therefore  the 
presentation  of  opportunity  to  desire.  Given  the  oppor- 
tunity, the  stronger  the  desire  the  stronger  the  tempta- 
tion. Given  the  desire,  the  more  manifest  and  facile  the 
opportunity  the  stronger  the  temptation.  Opportunity 
that  is  unknown  can  be  no  temptation.  Nor  is  oppor- 
tunity, even  if  known,  any  temptation  in  the  absence  of 
desire.  Nor  can  desire,  however  powerful,  lead  to  crime 
in  the  absence  of  opportunity. 

Thus  we  find  that  desire  and  opportunity,  the  internal 
factor  and  the  external  factor,  are  the  necessary  ingred- 


THE  FACTORS  OF  CRIME  45 

ients  in  the  commission  of  crime;  and  these  two  factors 
are  complementary.  The  more  powerful  the  desire,  the 
less  of  manifest  opportunity  is  needed.  The  more  mani- 
fest the  opportunity,  the  less  of  desire  is  needed.  If 
desire  is  powerful,  opportunity  will  be  sought;  will  be 
diligently  and  painstakingly  sought;  will  even  be  made 
where  it  does  not  exist.  If  opportunity  is  manifest  and 
conspicuous,  if  it  obtrudes  itself  and  thrusts  itself  upon 
the  notice,  a  very  small  modicum  of  desire  will  be  enough 
to  bring  about  the  commission  of  the  crime ;  but  in  every 
casejrhere  must  be  the  combination  of  desire  and  op- 
porfunity,  or  there  will  be  no  crime.  Even  when  both 
exist,  it  does  not  necessarily  follow  that  crime  will  be 
perpetrated.  The  restraints  of  morality  or  of  prudence 
may  intervene  and  prevent;  and  therefore  it  is  more  cor- 
rect to  speak  of  disposition  than  of  desire  as  conducing 
to  crime,  for  disposition  includes  the  whole  of  the  inter- 
nal factor;  it  includes  not  only  desire,  but  also  the  sum 
total  of  all  instinctive  desires,  both  crude  and  elaborate, 
selfish  and  social;  it  includes  the  degree  of  intelligence, 
and  all  the  results  of  training,  education,  upbringing, 
habit,  experience,  and  so  forth. 

From  what  has  been  said  it  will  appear  that  the  ex- 
ternal factor,  constituted  by  the  circumstances  that  con- 
duce to  the  commission  of  any  crime,  is  quite  as  important 
as  the  internal  factor,  constituted  by  the  disposition  of 
the  criminal;  and  that  in  any  investigation  into  the  origin 
of  crime  the  circumstances  ought  to  receive  as  much  at- 
tention as  the  disposition  of  the  criminal.  In  every  in- 
vestigation that  I  know  of  the  circumstances  are  wholly 
ignored,  and  the  only  matter  treated  of  is  the  disposition 
of  the  criminal;  and  even  this  is  usually  treated  of  in  a 
partial  and  one-sided  manner,  by  concentrating  attention 
upon  only  one  aspect  of  the  facts,  forcing  them  to  fit  in 


46  CRIME  AND  CRIMINALS 

with  a  foregone  conclusion,  and  ignoring  every  fact  that 
militates  against  this  preconception.  Even  Dr.  Goring's 
investigation,  laborious  and  painstaking  as  it  is,  takes 
account  solely  of  the  disposition  of  the  criminal,  and 
leaves  out  altogether  consideration  of  the  circumstances 
that  conduce  to  any  crime. 


CHAPTER  II 
THE  PSYCHOLOGY  OF  CRIME 

As  criminal  conduct  is  a  branch  of  conduct  at  large,  and 
is  subject  to  the  same  laws  and  influenced  by  the  same 
circumstances,  so  the  psychology  of  crime  is  but  part  of 
psychology  at  large,  and  no  more  special  to  the  criminal 
than-the  psychological  or  mental  make-up  or  disposition 
of  any  one  man  differs  from  that  of  every  other.  Never- 
theless, in  order  to  understand  and  take  full  account  of 
that  mental  factor  that  Sir  Fitz James  Stephen  speaks  of 
as  a  necessary  constituent  in  crime,  we  must  approach  the 
psychology  of  the  criminal  from  a  certain  point  of  view, 
and  treat  even  of  psychology  at  large  in  a  way  that,  as 
far  as  I  know,  it  has  not  been  treated  of  before,  except 
in  my  book  on  Insanity. 

In  my  view,  the  mind  of  any  person  is  one  whole; 
but,  like  many  other  totalities,  it  need  not  be  contem- 
plated as  a  whole.  It  consists  of  several  components  or 
faculties,  sufficiently  distinct  to  be  separately  described 
and  separately  estimated,  and  each  of  these  faculties  may 
be  further  subdivided  in  contemplation  for  convenience 
of  description  and  estimation.  The  several  primary  de- 
partments of  mind  are  Desire,  Intellect,  Feeling,  Will, 
and  Memory.  It  is  the  fashion  in  psychology  now  to 
depreciate  and  despise  the  division  of  mind  into  faculties 
that  prevailed  until  about  seventy  years  ago,  but  it  seems 
to  me  a  mere  fashion.  I  have  examined  with  care  the 
arguments  against  it,  and  they  seem  to  me  very  uncon- 
vincing. Neither  madness  nor  criminality  can  be  under- 

47 


48  CRIME  AND  CRIMINALS 

stood  without  some   such  division  as  I   have  indicated 
above. 

DESIRE  AND  AVERSION 

Desire  and  aversion  must  be  taken  together,  for  as 
motives  to  conduct  they  are  inseparable,  and  in  many 
cases  but  two  sides  of  the  same  mental  state.  Desire 
for  food,  for  instance,  is  but  the  obverse  of  aversion  to 
hunger,  and  in  most  contexts  we  may  substitute  the  one 
expression  for  the  other  without  disturbing  the  argu- 
ment. Before  conduct  of  any  kind  can  come  into  exist- 
tence,  there  must  be  a  motive,  a  prompting,  an  internal 
urging  to  action.  It  should  be  said  here,  as  is  fully 
explained  in  my  book  on  Conduct,  that  action  is  not  the 
same  thing  as  movement.  Action  may  be  the  suppres- 
sion and  avoidance  of  movement.  I  have  defined  action 
as  movement,  or  arrest  or  suppression  of  movement,  for 
the  attainment  of  a  purpose.  Unless  there  is  some  reason 
why  action  should  be  undertaken,  unless  there  is  some 
purpose  to  serve  by  it,  there  will  be  no  action;  and  the 
purpose  for  which  an  action  is  undertaken  is  always  the 
satisfaction  of  some  desire  or  some  aversion.  Desire 
and  aversion  are  properly  called  the  motives  to  conduct, 
since  they  set  the  body  in  motion,  or  alter  or  arrest  or 
suppress  its  motion,  for  the  attainment  of  some  purpose; 
the  purpose  being  the  satisfaction  of  the  desire  or  the 
aversion — the  production  of  a  state  of  things  desired  or 
the  removal  of  a  state  of  things  disliked.  Desire  and 
aversion  are  to  human  conduct  what  the  pressure  of 
steam  is  to  the  steam  engine.  They  supply  the  motive 
power. 

The  directions  in  which  human  conduct  proceeds,  the 
kinds  of  acts  that  go  to  make  up  the  conduct  of  mankind, 
or  even  of  any  one  man,  are  virtually  infinite,  are  at  any 


THE  PSYCHOLOGY  OF  CRIME  49 

rate  incalculably  numerous;  but  all  these  immensely 
diversified  acts  are  prompted  by  a  small  group  of  ulti- 
mate motives.  I  say  ultimate  motives,  because  there  is 
a  profound  difference  between  ultimate,  proximate,  and 
intermediate  motives.  Proximate  motives,  the  immediate 
motives  to  action,  are  almost  as  numerous  and  diverse  as 
actions  themselves;  and  one  and  the  same  action  may  be 
prompted  in  one  person  by  one  motive  and  in  another 
person  by  another,  or  even  in  the  same  person  at  one 
time  by  one  motive  and  at  another  time  by  another.  One 
map-may  stab  his  neighbor  from  furious  blind  rage,  in 
the  provocation  of  the  moment,  his  motive  being  little 
more  than  the  letting  off  of  steam.  Another  may  stab 
his  neighbor  from  cold  and  settled  hate,  long  cherished 
and  premeditated.  Another  may  commit  the  same  act 
from  the  benevolent  motive  of  ridding  the  neighbor  of 
a  tumor.  Yet  another  may  do  the  same  thing  reluc- 
tantly and  sorrowfully  at  the  neighbor's  own  entreaty; 
and  many  other  proximate  motives  may  easily  be  im- 
agined, and  have  in  experience  been  found,  to  prompt  to 
action  of  the  same  kind.  But  if  we  trace  these  proxi- 
mate motives  back  to  their  source,  we  find  that  every  one 
of  them  may  be  assigned  to  one  of  a  very  small  group 
of  ultimate  motives  or  instinctive  desires  that  are  the 
same  in  every  man,  though  they  are  not  in  every  man 
combined  in  precisely  the  same  proportion,  nor  have  they 
in  every  man  the  same  absolute  strength.  The  variation 
is,  however,  not  great.  Every  man  possesses  every  one 
of  this  small  number  of  instinctive  desires,  and  from 
their  promptings,  singly  or  combined,  in  harmony  or  in 
conflict,  springs  in  the  last  resort  all  the  conduct  of  every 
man. 

When  a  starving  man  steals  a  loaf  of  bread  to  satisfy 
his  hunger,  the  act  is  due  directly  to  the  prompting  of 


50  CRIME  AND  CRIMINALS 

hunger  or  the  desire  for  food,  which  is  a  part  of  the 
instinctive  desire,  common  to  all  animals,  to  preserve  his 
own  life.  If,  instead  of  stealing  the  loaf,  he  works  for 
the  money  to  buy  it,  his  action  is  prompted,  though  less 
directly,  by  the  same  desire.  If  he  presents  himself  as 
a  candidate  for  Parliament,  with  the  view  of  increasing 
his  influence,  advertising  himself,  forwarding  the 
schemes  in  which  he  is  interested,  and  so  in  the  long 
run  increasing  his  business  and  making  more  money,  his 
ultimate  motive  is  still  the  same — self-preservation,  now, 
perhaps,  reinforced  by  some  additions  from  other  funda- 
mental motives.  To  some  extent  he  is  moved  by  the 
desire  to  benefit  his  children  and  establish  them  in  the 
world,  an  offset  of  the  fundamental  desire  of  parent- 
hood; to  some  extent  he  is  influenced  by  ambition,  and 
the  desire  to  be  esteemed  and  respected  by  other  men, 
an  offshoot  of  the  fundamental  instinct  of  sociality;  to 
some  extent  he  is  influenced  by  the  desire  of  accumula- 
tion, which  is  itself  a  derivative  of  the  desire  of  self- 
preservation.  But  whatever  the  motives  that  prompt 
him — and  he  would  himself  be  unable  to  trace  them  to 
their  source  and  apportion  them  among  the  few  funda- 
mental motives  that  actuate  conduct — they  are  all  assign- 
able ultimately  to  the  very  small  group  of  fundamental 
instinctive  desires. 

The  loaf  may  be  stolen,  not  to  satisfy  the  thief's 
hunger,  but  to  satisfy  the  hunger  of  his  children;  and  in 
this  case  the  act  is  prompted  directly  by  the  parental  in- 
stinct, the  desire  for  the  preservation  and  welfare  of 
his  children,  another  of  the  small  group  of  primitive  or 
instinctive  desires.  If  he  works  for  the  money  to  buy 
food  in  excess  of  his  own  requirements,  or  to  buy  clothes 
or  toys  or  what  not  for  his  children,  he  is  prompted  in- 
directly by  the  same  motive ;  and  when  he  makes  inquiries 


THE  PSYCHOLOGY  OF  CRIME  51 

to  discover  the  best  school,  extends  his  business  so  that 
he  may  afford  to  send  his  sons  to  the  university  and  his 
daughters  to  complete  their  education  in  France,  he  is 
prompted  indirectly  by  the  same  motive. 

Whatever  the  motive  for  any  act — and  it  is  often  im- 
possible for  the  observer  to  assign  the  motive,  often 
difficult  or  impossible  for  the  actor  himself  to  do  so — 
no  one  doubts  that  every  act  of  every  sane  human  being 
is  prompted  by  some  motive,  which  is  all  that  we  need 
insist  upon  now.  We  can  always  assign  some  motive 
fo£-»very  act  we  perform  or  witness,  and,  though  we 
may  not  be  correct  as  to  the  particular  motive  we  assign, 
we  take  it  for  granted  that  the  act  had  some  motive; 
and  if  we  cannot  assign  any  motive  at  all,  we  regard  the 
act  as  mad.  The  perpetration  of  a  motiveless  act,  by 
which  we  mean  an  act  for  which  no  motive  is  apparent, 
is  always  regarded  as  a  sign  of  madness;  and  this  of 
itself  shows  how  constantly  and  inevitably  we  take  it 
for  granted  that  acts  are  prompted  by  motives.  And  by 
a  motive  we  mean  a  desire  or  an  aversion. 

Motives,  as  we  have  seen,  may  act  directly  or  in- 
directly. In  the  first  case  the  act  is  predominantly  in- 
stinctive :  in  the  second  it  contains  an  infusion  of  reason ; 
and  the  more  indirect  the  motive — that  is  to  say,  the 
longer  the  series  of  acts  by  which  it  seeks  satisfaction — 
the  larger  is  the  share  of  reason  in  the  whole  operation. 
We  have  already  seen  that  instinct,  by  which  we  now 
mean  instinctive  desire,  dictates  with  imperious  necessity 
the  ultimate  end  to  be  pursued,  and  that  reason  discovers 
and  devises  the  means  by  which  the  end  may  be  com- 
passed. We  have  seen,  also,  what  a  long  series  of  suc- 
cessive steps  may  be  required  to  compass  one  of  these 
ultimate  purposes  and  satisfy  one  of  these  primitive 
desires.  When  a  young  man  falls  in  love,  the  yearning 


52  CRIME  AND  CRIMINALS 

that  he  feels  for  the  presence,  the  association,  the  com- 
pany of  his  beloved  is  a  purely  instinctive  desire.  This 
desire  cannot  be  satisfied  directly.  He  cannot  rush  into 
her  presence  regardless  of  time,  place,  and  circumstances. 
To  satisfy  his  desire  he  must  proceed  indirectly.  He 
must  get  a  holiday.  He  must  procure  an  invitation.  To 
commend  and  ingratiate  himself  he  must  have  new 
clothes.  He  must  seek  opportunity,  or  make  oppor- 
tunity; and  for  this  purpose  he  must  cultivate  an  ac- 
quaintance here,  seek  an  interview  there,  write  letters, 
go  journeys,  remain  late  at  his  office  to  get  through  his 
work,  intrigue  and  finesse  in  a  dozen  different  directions. 
In  all  this  he  is  employing  reason  to  seek  the  means  of 
satisfying  the  primary  instinctive  desire  that  prompts  the 
whole  train  of  acts;  but  it  is  important  to  notice  that 
more  than  reason  is  involved  in  the  process.  As  soon 
as  he  has  determined  by  a  process  of  reasoning  that  a 
holiday  will  advance  him  towards  the  attainment  of  his 
purpose  and  the  satisfaction  of  his  desire,  he  feels  a 
desire  to  obtain  a  holiday.  As  soon  as  his  reason  tells 
him  that  an  invitation  will  facilitate  the  attainment  of 
his  purpose,  he  experiences  a  desire  for  the  invitation. 
When  he  finds  the  invitation  is  not  to  be  obtained  with- 
out an  introduction,  he  has  a  desire  for  the  introduction. 
If  to  obtain  the  introduction  he  must  write  a  certain 
letter,  he  has  a  desire  to  write  the  letter;  and  so  on 
throughout  the  whole  series  of  operations.  Each  step 
is  devised  by  reason,  it  is  true,  but  reason  is  not  the 
only  faculty  employed.  Each  step,  as  it  is  decided  upon, 
becomes  an  object  of  desire,  and  all  these  subsidiary 
desires  derive  their  strength  and  efficacy  from  the  pri- 
mary desire.  If  his  affection  for  his  lady  cools,  and  he 
no  longer  affects  her  society,  straightway  the  whole  train 
of  desires  diminishes  in  intensity  and  fades.  The  letter 


THE  PSYCHOLOGY  OF  CRIME  53 

that  he  was  so  eager  to  write  now  seems  superfluous. 
The  interview  that  the  letter  was  to  bring  about  no 
longer  interests  him.  The  invitation  that  he  was  to 
obtain  from  the  interview  is  become  indifferent  to  him. 
All  the  successive  desires  that  grew  out  of  the  primitive 
desire  and  are  dependent  on  it  fade  and  weaken  with  the 
fading  of  the  primitive  desire. 

Of  all  these  secondary,  tertiary,  and  successive  desires, 
more  and  more  remote  from  the  primitive  desire,  and 
more  and  more  directly  concerned  with  the  act  that  is 
being  performed  or  about  to  be  performed,  one  alone 
has  attracted  the  attention  of  jurists,  who  assign  to  it  a 
special  importance  and  distinguish  it  by  a  certain  name. 
This  is  the  very  last  of  the  series,  that  which  prompts  to 
the  very  act  that  is  done,  and  that  which  must  have  been 
in  the  mind  of  the  actor  at  the  time  he  did  the  act.  For 
it  is  to  be  noticed  that  the  previous  desires  in  the  train 
lose  their  vividness  for  the  time  being  as  they  are  super- 
seded by  the  subsidiary  desires  that  grow  out  of  them. 
The  desire  for  an  introduction  is  strong  as  soon  as  it  is 
seen  to  be  a  step  towards  the  attainment  of  the  further 
purpose  of  associating  with  the  beloved;  but  as  soon  as 
it  is  determined  that  a  certain  interview  is  necessary  to 
obtain  the  introduction,  the  desire  for  the  introduction 
is  superseded  and  placed  temporarily  on  one  side.  It 
goes  out  of  focus,  and  desire  is  concentrated  on  obtain- 
ing the  interview.  When  it  is  seen  that  to  obtain  the 
interview  a  letter  must  be  written,  the  desire  to  obtain 
the  interview  goes  out  of  focus,  which  is  occupied  by 
the  desire  to  write  the  letter.  Now,  of  all  the  long 
train  of  successive  desires  that  may  precede  the  accom- 
plishment of  any  act,  an  observer  cannot  be  sure  of  any 
but  the  last.  When  we  see  the  lover  writing  the  letter, 
we  may  be  sure  that  he  desires  to  write  the  letter,  but 


54  CRIME  AND  CRIMINALS 

we  cannot  be  sure  of  any  other  of  the  desires  in  the  train 
that  have  induced  him  to  write  the  letter.  When  we 
find  the  letter  written,  we  may  be  sure  that  when  he 
wrote  it  he  was  prompted  by  the  desire  of  writing  it, 
but  we  can  be  sure  of  nothing  further.  If  he  gives  us 
the  letter  to  read,  and  we  find  that  it  solicits  an  inter- 
view with  the  addressee,  we  may  infer  that  it  was 
prompted  by  a  desire  for  this  interview,  but  we  can  draw 
no  further  inference,  unless  we  can  discover  it  from  the 
terms  of  the  letter.  We  can  rightly  infer  from  the  doing 
of  any  act  that  the  actor  had  in  his  mind  when  he  did 
it  the  desire  to  do  that  very  act  and  to  bring  about  the 
consequences  that  must,  in  the  natural  course  of  things  as 
known  to  us,  result  from  that  act.  If  he  throws  an  egg 
violently  to  the  ground,  we  must  infer  that  he  desired  to 
throw  the  egg  to  the  ground,  and,  more  than  this,  that 
he  desired  to  smash  the  egg,  for  smashing  of  an  egg  is 
the  consequence  that  must,  in  the  natural  course  of  things 
as  known  to  us,  result  from  throwing  it  to  the  ground. 
If  the  egg  was  about  to  be  eaten,  then  we  may  rightly 
infer  that  one  desire  in  the  mind  of  the  person  who 
threw  the  egg  was  to  prevent  the  eating  of  the  egg,  for 
that  again  is  the  natural  consequence  of  his  act.  Further 
back  than  this  we  cannot  go  with  safety  from  the  mere 
observation  of  the  act.  From  other  information  we  may 
be  able  to  guess  what  desire  lay  behind  the  desire  to 
prevent  the  eating  of  the  egg,  but  we  cannot  infer  any- 
thing about  this  desire  from  the  act  itself.  Whatever 
desire  was  and  must  have  been  in  the  mind  of  the  actor 
at  the  moment  the  act  was  done  is  distinguished  from 
all  other  desires  that  led  up  to  the  act,  and  is  called  the 
intention  of  the  act.  The  intention  of  the  act  is  there- 
fore the  desire  to  do  the  act,  and  to  bring  about  those 
consequences  that,  in  the  natural  course  of  things  as  gen- 


THE  PSYCHOLOGY  OF  CRIME  55 

erally  known,  must  result  from  the  act.  The  previous 
desires  are  termed  motives.  They  must  have  been  pres- 
ent in  the  mind  of  the  actor  at  some  time  previous  to  the 
act.  They  may  have  been  more  or  less  vividly  present  in 
his  mind  even  at  the  time  the  act  was  done ;  but  we  can- 
not infer  them  from  the  act  itself,  because  their  connec- 
tion with  it  is  not  apparent  from  the  nature  of  the  act. 
The  result  desired  does  not  ensue,  as  far  as  we  can  judge, 
inevitably  and  necessarily  from  the  act. 

Intention  is  necessary  in  crime.  If  an  act  has  conse- 
que<Tc!es  that  were  not  desired  by  the  actor  at  the  time 
the  act  was  done,  then  for  those  consequences  he  is  not 
to  be  held  responsible.  But  as  we  cannot  look  into  the 
mind  of  another  person  and  discern  what  desires  were 
present  therein,  we  are  obliged  to  infer  the  intention 
from  the  act;  and  we  may,  and  indeed  must,  infer  that 
he  intended  those  consequences  that  common  knowledge 
declares  must  result,  or  are  very  likely  to  result,  from 
such  an  act;  and  when  we  say  that  this  was  his  intention, 
we  mean  that  this  was  the  desire  in  his  mind  at  the  very 
time  that  he  was  performing  the  act.  For  this  intention 
he  is  responsible,  and  must  take  the  consequences. 

INTELLECT 

The  part  played  in  action  by  intellect  or  reason  has 
already  been  examined.  Intellect  devises  the  means  to 
compass  those  ends  that  desire  dictates;  and  as  soon  as 
intellect  has  pointed  the  way,  desire  declares  that  that 
way  must  be  followed.  Intellect  discerns  that  the  end 
is  to  be  attained  only  by  a  series  that  may  be  so  long 
that  the  stages  most  remote  from  the  primitive  desire — 
and  these  stages  are  the  first  to  be  traversed — may  be 
quite  out  of  sight  of  the  ultimate  goal,  and  may  appear, 


56  CRIME  AND  CRIMINALS 

even  to  the  actor  himself,  to  have  no  connection  with  it, 
and  to  lead  anywhere  but  in  that  direction.  The  high- 
souled,  ardent  youth,  worshiping  his  mistress  from  afar, 
and  cudgeling  his  brains  for  rhymes  to  "  angel "  and 
"  perfect,"  has  no  suspicion  that  the  ultimate  motive 
behind  his  rhyming  is  the  primitive  desire  to  replenish 
the  earth  and  save  from  extinction  the  race  to  which  he 
belongs.  The  middle-aged  spinster,  arising  at  an  uncom- 
fortably early  hour  on  a  winter's  morning  to  attend 
"  early  celebration,"  would  be  indignant  if  she  were  told 
the  truth — that  her  action  is  prompted  by  that  craving 
for  self-sacrifice  which  is  part  of  the  fundamental  in- 
stinctive desire  for  motherhood.  A  desire  deprived  of 
its  natural  means  of  expression  will  find  what  means  of 
expression  it  can;  and  a  tame  beaver,  removed  from  its 
natural  habitat,  will  build  a  dam  in  the  corner  of  a  bed- 
room with  boots,  books,  and  hair-brushes.  The  rhymes 
of  the  ardent  youth  are  boots,  and  the  genuflexions  of 
the  spinster  are  hair-brushes. 

Primitive  desires  thus  ramify  in  unexpected  directions, 
and  their  ramifications  may  or  may  not  be  directed  by 
the  intellect.  Whatever  the  stage,  however,  at  which  an 
instinctive  desire  comes  to  the  surface,  manifests  itself, 
and  demands  expression  in  conduct,  it  seeks  the  aid  of 
reason  to  direct  it;  and  whatever  action  intellect  may 
devise  is  prompted  by  a  desire  that  may  be  traced  back 
to  one  of  the  small  group  of  primitive  desires,  but  that 
is,  at  the  stage  at  which  it  is  arrived,  a  desire  to  do  the 
very  act  that  reason  discovers  as  likely  to  contribute  to 
the  satisfaction,  at  however  many  removes,  of  the  primi- 
tive desire. 

Intellect  devises  the  means  of  attaining  those  ends  that 
are  dictated  by  desire,  and  the  means  are  crude  or  elab- 
orate according  as  the  intellect  is  of  low  or  high  de- 


THE  PSYCHOLOGY  OF  CRIME  57 

velopment.  Intellect,  therefore,  takes  a  large  share  in 
determining  the  kind  of  crime  a  person  commits.  It  is 
evident  that  stupid  people  are  debarred  by  their  stupidity 
from  committing  very  intelligent  crimes;  but  it  is  evident 
also,  and  it  is  confirmed  by  experience,  that  intelligent 
persons  are  by  no  means  debarred  from  committing 
crude  and  even  stupid  crimes.  Dr.  Webster  was  a  highly 
educated  man,  and  a  man  of  sufficient  intelligence  to 
obtain  the  position  of  professor  of  chemistry;  but  his 
murder  of  Dr.  Parkman  was  a  very  crude  crime,  and  also 
a  ve^y  stupid  crime.  It  was  committed  in  a  way  that 
rendered  discovery  of  both  crime  and  perpetrator  so 
extremely  likely  that  the  crime  was  not  worth  while.  On 
the  other  hand,  a  modern  safe  robbery  requires  great 
practical  intelligence.  It  needs  most  careful  forethought 
and  preparation,  and  utilizes  elaborate  scientific  apparatus 
that  require  considerable  knowledge  and  skill  for  their 
employment.  Company-promoting  frauds  require  a  very 
high  degree  of  intelligence — so  much,  that  it  may  need 
the  skill  of  half  a  dozen  able  counsel  to  unravel  their 
perplexities.  From  such  crimes  stupid  persons,  and  even 
persons  of  average  intelligence,  are  debarred  by  want  of 
the  necessary  mental  equipment.  The  great  majority  of 
crimes,  however,  are  of  a  very  crude  nature,  and  need 
but  little  intelligence  for  their  perpetration. 

Want  of  intelligence  may,  and  in  some  cases  does, 
contribute  to  crime  by  rendering  the  criminal  incapable 
of  recognizing  the  difference  between  right  and  wrong. 
In  its  extreme  form  this  inability  is  rare,  and  the  uni- 
versal experience  of  mankind  shows  that  persons  of  dull 
intellect  are  often  capable  of  a  high  standard  of  rectitude ; 
but  not  only  are  there  a  few  persons,  such  as  the  man 
described  by  Dr.  Quinton,  who  are  too  stupid  to  ap- 
preciate the  difference  between  right  and  wrong  in  any 


58  CRIME  AND  CRIMINALS 

case,  but  also  there  are  very  many  who  have  not  enough 
intelligence  to  appreciate  how  wrong  a  given  wrong  act 
is.  They  appreciate  that  serious  crime  is  not  quite  right, 
but  they  look  upon  it  as  a  peccadillo,  whose  wrongness 
is  of  no  great  importance.  This  inability  to  appreciate 
the  degree  of  turpitude  of  an  act  is  very  frequent,  and 
has  not  been  sufficiently  recognized  either  by  jurists  or  by 
psychologists.  The  only  writer  besides  myself  who  has 
paid  any  attention  to  it  is  Sir  Fitzjames  Stephen,  who 
recognized  it  very  clearly.  Its  importance  in  contribut- 
ing to  crime  is  obvious.  Very  many  persons  who  would 
never  commit  what  they  considered  serious  crime  would 
think  nothing  of  perpetrating  what  they  consider  a  mere 
peccadillo.  An  extreme  case  is  adduced  by  Sir  Fitzjames 
Stephen,  of  a  mischievous  lad  who  cut  off  the  head  of  a 
sleeping  man  to  witness  his  surprise  when  he  should 
wake.  No  doubt  the  lad  realized  that  he  was  doing  a 
mischievous  trick,  which  his  elders  would  discountenance 
and  reprove  him  for,  as  they  might  discountenance  and 
reprove  him  for  pulling  the  tail  feathers  out  of  a  pheas- 
ant for  the  same  reason;  but  undoubtedly  he  did  not  rec- 
ognize that  the  one  act  was  of  more  serious  import  than 
the  other.  An  incapability  as  great  as  this  of  estimating 
degrees  of  wrongness  of  acts  is  no  doubt  rare,  but  less 
degrees  are  very  frequent,  especially  among  those  who 
are  insane  in  various  degree,  or  mentally  deficient.  It  is 
this  inability  that  vitiates  the  famous  doctrine  laid  down 
by  the  judges  in  1843  w^tn  respect  to  the  responsibility 
of  madmen.  The  madman  is  responsible,  they  say,  if  he 
knows  the  nature  and  quality  of  the  act,  and  that  it  was 
wrong.  This  supposes  that  there  is  not  only  a  sharp 
and  unmistakable  division  between  right  and  wrong  acts, 
but  also  that  there  is  but  one  degree  of  Tightness  and 
wrongness.  According  to  the  dictum,  an  act  is  right  or 


THE  PSYCHOLOGY  OF  CRIME  59 

wrong  and  there's  an  end  on't;  but  this  is  a  very  crude 
and  imperfect  view.  There  are  innumerable  degrees  of 
Tightness  and  wrongness  of  acts,  ranging  from  acts  of 
the  purest  and  most  unselfish  philanthropy  and  acts  of 
sternest  duty  to  acts  of  German  wickedness  and  de- 
pravity; and  very  many  acts  are  near  the  border  line, 
so  that  it  may  be  difficult  to  say,  not  merely  how  right 
or  wrong  they  are,  but  whether  they  are  right  or  wrong. 
They  may  be  right  in  some  aspects,  or  in  one  set  of 
circumstances,  and  wrong  in  others.  They  may  be  right 
for  £eme  people  and  wrong  for  others  to  do.  An  act 
may  be  of  mixed  nature,  and  may  be  to  some  extent 
right  and  to  some  extent  wrong;  and  to  decide  which 
prevails  may  be  difficult.  Hence,  to  recognize  fine  shades 
of  Tightness  and  wrongness  may  require  a  keenness  and 
subtlety  of  intellect  that  few  people  possess;  indeed,  it 
may  be  differently  decided  by  different  intelligent  people 
of  approximately  equal  intelligence. 

Intellect,  as  has  been  frequently  asserted,  devises  the 
means  by  which  the  attainment  of  desired  ends  is  sought; 
and  intellect  may  take  this  share  in  crime,  that  it  may 
devise  a  criminal  means  of  attaining  an  end  that  is  itself 
innocent.  Indeed,  criminality  scarcely  attaches  to  any  of 
the  primitive  instinctive  desires.  There  is  nothing  crim- 
inal, or  necessarily  tending  to  criminality,  in  the  desire 
to  obtain  food  or  drink,  to  avoid  personal  injury,  to 
seek  warmth  and  shelter,  to  gratify  sexual  and  parental 
longings,  to  indulge  in  recreation,  or  to  satisfy  curiosity. 
The  laudability  or  criminality  of  the  acts  prompted  by 
these  primitive  desires  lies,  not  in  the  nature  of  the  end 
pursued,  but  in  the  means  by  which  the  end  is  attained; 
and  the  choice  and  devising  of  means  is  effected  by  the 
intellect.  It  is  an  affair  of  reason,  and,  if  instinctive  at 
all,  is  only  secondarily  instinctive,  or  is  settled  by  habit 


60  CRIME  AND  CRIMINALS 

and  automatism,  which  are  themselves  ultimately  the 
products  of  reasoned  action.  In  a  sense,  therefore, 
criminality  originates  in  the  intellect  and  not  in  desire; 
though,  of  course,  without  primitive  desires  there  would 
be  no  action  at  all,  and  therefore  no  criminal  action. 
Still,  it  is  evident  that  criminality  consists,  not  in  primi- 
tive desire,  nor  in  the  gratification  of  primitive  desire, 
but  in  the  choice  of  the  way  in  which  the.  gratification  is 
obtained  or  sought;  and  choice  means  reason.  It  is 
determined  by  the  intellect.  It  involves  comparison,  and 
comparison  is  a  purely  intellectual  process. 

The  chief  part  that  the  intellect  plays  in  crime,  how- 
ever, is  in  determining  what  may  be  called  the  intellectual 
grade  of  the  crime.  Crimes  of  great  elaboration,  de- 
manding high  intelligence  in  the  criminal,  are  necessarily 
restricted  to  persons  of  high  intelligence.  Crude  crimes, 
such  as  most  crimes  of  violence,  most  sexual  offenses,  and 
most  crimes  of  destruction,  may  be  committed  by  any 
one,  but  are  more  likely  to  be  committed  by  the  dull; 
and  some  crimes  are  in  their  very  nature  so  unintelligent 
that  they  would  never  be  committed  by  persons  of  even 
average  intelligence,  much  less  by  the  highly  intellectual. 

Another  important  part  that  intellect  plays  in  crime 
is  undoubtedly  in  aiding  to  secure  the  criminal  from 
discovery  and  from  connection  with  the  crime.  How  far 
it  contributes  to  his  success  in  this  respect  we  have  no 
means  of  knowing  precisely,  but  that  it  does  play  a  con- 
siderable part  is  an  inference  that  may  be  drawn  from 
Dr.  Goring's  figures,  though  it  is  one  that  he  does  not 
draw.  He  finds  that  a  very  large  proportion  of  criminals 
are  of  weak  intellect;  but  then  his  figures  refer,  not  to 
criminals  as  a  whole,  but  to  convicted  criminals;  and 
without  going  into  statistics,  it  is  surely  a  fair  and  ob- 
vious inference  that  the  more  stupid  a  criminal  is,  the  less 


THE  PSYCHOLOGY  OF  CRIME  61 

likely  he  is  to  be  successful  in  eluding  the  police.  It: 
appears  from  official  statistics  that  there  is  a  very  con- 
siderable proportion  ,of  crimes,  as  large  a  proportion 
as  six-sevenths,  that  are  never  brought  home  to  their 
perpetrators.  All  the  criminals  who  have  committed 
these  crimes  are  excluded  from  Dr.  Goring's  statistics, 
and  it  is  a  fair  inference  that  they  include  the  more  in- 
telligent criminals.  Obviously,  too,  the  more  intelligent 
criminals  are  the  more  dangerous  criminals;  dangerous, 
not  in  the  sense  that  they  are  more  addicted  to  crimes 
of  violence,  but  in  the  sense  that  it  is  more  difficult  to 
take  ^effectual  precautions  against  them,  so  that  their 
crimes  are  at  once  more  difficult  to  prevent  and  more 
difficult  to  bring  home  to  the  criminal  after  they  have 
been  committed. 

WILL 

But,  though  choice  involves  comparison,  and  cannot 
be  made  without  comparison,  yet  in  choice  there  is  some- 
thing more  than  comparison  and  the  appreciation  of 
likeness  and  unlikeness,  which  are  pure  ingredients  in 
thought.  Strictly  speaking,  comparison  is  antecedent  to 
choice,  and  is  not  an  integral  part  of  choice.  Intellect 
discerns  two  or  more  alternatives,  compares  them  with 
one  another,  marks  the  differences  between  them,  de- 
cides upon  their  comparative  advantages  and  disadvant- 
ages, but  can  do  no  more.  To  make  actual  choice  be- 
tween alternative  modes  of  action,  a  new  mental  faculty, 
different  from  both  desire  and  intellect,  must  be  em- 
ployed. This  faculty  is  Will.  Will  or  Volition  is  not 
definable,  and  is  not  easy  to  describe;  but  this  is  of  little 
consequence,  since  every  one  knows  what  it  means.  It 
is  a  movement  of  the  whole  mental  personality  in  a 
certain  direction,  or  we  may  call  it  an  outpouring  of 


62  CRIME  AND  CRIMINALS 

mental  energy  in  this  direction.  Sir  Fitz James  Stephen 
calls  it  "  a  kind  of  crisis  of  which  every  one  is  conscious, 
but  which  it  is  impossible  to  describe  otherwise  than  by 
naming  it." 

Will  or  volition  manifests  itself  in  three  ways.  The 
first  of  these  is  in  choice.  Comparison  is,  as  has  been 
said,  the  function  of  the  intellect.  When  things  are 
compared,  they  are  discerned  to  be  alike  or  different, 
and  this  discernment  of  likeness  or  difference  is  again 
a  purely  intellectual  function.  When  they  are  discerned 
to  be  alike  or  different,  the  respect  in  which  they  are 
alike  or  different  is  discerned  at  the  same  time,  and  this 
also  is  effected  by  the  intellect  alone.  All  these  opera- 
tions are  in  the  realm  of  intellect  or  thought  alone;  but 
when  things  are  compared  with  a  view  to  action  upon 
or  about  them,  and  the  difference  discerned  between  them 
is  a  difference  in  desirability,  then  a  new  mental  faculty 
comes  upon  the  scene  and  takes  up  the  action.  Then 
choice  is  made,  and  choice  is  made  by  an  exertion  of 
will.  This,  then,  is  the  first  function  of  will.  It  selects. 
It  decides,  not  that  one  thing  is  more  desirable  than 
another — that  has  already  been  determined  by  intellect 
— but  that  the  more  desirable  thing  shall  be  taken  up  and 
cherished,  while  the  less  desirable  shall  be  rejected  and 
discarded. 

The  second  function  of  will  is  the  initiation  of  action. 
When  two  modes  of  action  are  before  the  mind,  intellect 
compares  them,  notes  the  difference  between  them,  and 
decides  that  one  is  more  desirable,  better  calculated  to 
attain  the  end  in  view,  than  the  other.  Thereupon  will 
intervenes  and  chooses  the  more  desirable  as  the  action 
that  shall  be  taken.  Shall  be  taken — shall  be  taken  at 
some  future  time,  either  the  immediate  future  or  the 
more  distant  future;  but  mere  choice  does  not  issue  in 


THE  PSYCHOLOGY  OF  CRIME  63 

action.  The  action  is  chosen,  but  is  not  begun  by  the 
operation  of  choice.  For  its  actual  execution  a  further 
exertion  of  will  is  necessary,  and  it  is  to  this  further 
exertion  of  will  that  the  term  "  volition "  is  usually 
restricted.  Volition  is  that  activity  of  the  mind  by  which 
bodily  action  is,  or  appears  to  be,  initiated  or  set  going. 
Whether  the  mental  exertion  of  the  will  actually  does 
produce  bodily  action,  or  whether  it  only  appears  to  do 
so,  is  the  subject  of  controversy  between  the  vitalists  and 
the  mechanicians,  but  it  need  not  be  discussed  here.  The 
decision,  one  way  or  the  other  does  not  affect  in  the  least 
the  responsibility  of  the  willing  person  for  his  voluntary 
acts.  The  discussion  is  in  this  connection  a  purely  aca- 
demic one,  without  any  practical  bearing.  For  all  practi- 
cal purposes  we  may  take  it  that  every  act  of  every 
human  being  is  set  agoing  by  an  exertion  of  will  imme- 
diately preceding  the  act,  and  this  exertion  of  will  we 
call  a  volition.  It  is  the  volition  that  makes  the  act 
what  we  call  voluntary — that  is  to  say,  assented  to  by 
the  mind  of  the  actor. 

Volition  may  follow  immediately  upon  choice,  so  that 
the  two  are  fused  into  a  single  act  of  will;  or  they  may 
be  separated  by  an  interval  of  almost  any  duration.  I 
may  choose  now  a  course  of  action  to  be  followed 
presently;  I  may  choose  to-day  a  course  of  action  to  be 
followed  next  week,  next  month,  next  year,  or  not  until 
several  years  have  elapsed;  and  my  choice  will  not  take 
effect  until  a  volition  has  been  exerted  to  give  effect  to  it. 
In  the  meantime,  the  choice  remains  in  my  mind  as  a 
determination,  which  is  a  choice,  and  something  more 
than  a  choice.  When  the  action  chosen  is  postponed  to 
a  future  occasion  and  volition  is  suspended  until  the 
occasion  arrives,  a  certain  bent  or  modification  of  mind 
endures  from  the  time  of  the  choice  to  the  time  of  the 


64  CRIME  AND  CRIMINALS 

action,  and  this  bent  or  modification  of  mind  is  called  a 
determination.  Determination  is  something  more  than 
choice,  for  choice  is  momentary,  while  determination  en- 
dures for  a  certain  time,  it  may  be  a  long  time.  We  may 
regard  determination  as  due  to  a  momentary  exertion  of 
will  of  a  third  kind,  intermediate  between  choice  and 
volition;  or  we  may  regard  it  as  a  permanent  exertion 
of  will,  lasting  from  the  time  of  the  volition.  Probably 
the  former  view  is  the  correct  one;  but  which  view  we 
take  matters  little  as  long  as  we  recognize  that  determina- 
tion is  an  exertion  of  will,  or  is  due  to  an  exertion  of 
will,  of  a  third  kind,  intermediate  in  nature,  as  much  as 
in  time,  between  choice  and  volition. 

In  each  of  its  kinds,  aspects,  or  phases,  will  is  an 
exertion  of  the  whole  self.  It  is  the  activity  of  the  whole 
human  being;  and  it  is  to  this  that  its  importance  is  due. 
It  is  on  this  account  that  when  will  is  exerted  responsibil- 
ity is  incurred  or  merit  is  achieved.  It  is  to  will,  and  to 
will  alone,  that  praise  or  blame  can  rightly  be  awarded. 
As  long  as  will  has  proceeded  only  as  far  as  choice  and 
determination,  the  Tightness  or  wrongness  of  the  act  con- 
templated is  a  moral  Tightness  or  wrongness.  The  case 
is  triable  only  in  foro  conscientiw,  and  however  wrong 
the  contemplated  act  may  be,  the  law  takes  no  cognizance 
of  it.  It  is  already  a  sin,  but  it  is  not  yet  a  crime.  The 
moment  volition  is  exerted  and  the  act  is  begun,  or  an 
endeavor  is  made  to  begin  the  act,  or  a  preliminary  or 
preparatory  act  is  done  or  begun,  criminality  is  incurred : 
crime  is  committed. 

It  is  sometimes  said — and  I  have  myself  held  the  view 
in  former  years,  before  I  had  fully  thought  the  matter 
out — that  action  is  determined  by  the  balance  of  desire; 
that  of  two  opposing  desires,  say  to  do  an  act  and  not  to 
do  it,  the  stronger  will  prevail.  This  is  true,  but  it  is  not 


THE  PSYCHOLOGY  OF  CRIME  65 

the  whole  truth,  and  may  be  very  misleading.  Careful 
introspection  shows  that  when  two  desires  are  in  conflict 
— for  instance,  the  desire  to  do  an  advantageous  act  that 
is  wrong,  and  the  desire  to  preserve  one's  self-respect  by 
abstaining  from  the  act — the  choice  may  fall  upon  that 
which  is  not  the  stronger.  In  other  words,  will  has  the 
power  to  overcome  desire.  Will  may  weight  the  scale 
and  compel  desire  to  kick  the  beam.  But  when  will  has 
thus  exerted  herself  and  taken  a  choice  in  defiance  of 
desire,  desire  ranges  itself  upon  the  side  of  the  chosen 
course^.  Whether  or  no  it  was  desired  before  the  choice 
was  made,  the  chosen  course,  as  soon  as  it  is  chosen, 
becomes  an  object  of  desire.  To  desire  to  do  a  thing 
is  not  necessarily  to  will  it;  but  the  moment  it  is  willed 
— that  is  to  say,  chosen  and  determined  on — it  becomes 
desired,  and  desire  reinforces  will.  The  desire  that  pre- 
cedes the  volition  is  the  motive  of  the  act:  the  desire 
that  accompanies  the  volition  is  the  intention  of  the  act. 
Hence  it  is  that  volition  is  never  divorced  from  intention. 
It  is  not  the  same  as  intention,  but  it  is  inseparable  from 
intention.  When  an  act  is  willed,  there  is  an  intention — 
that  is  to  say,  a  desire— to  do  the  act,  and  to  secure  those 
immediate  consequences  of  the  act  that  naturally  and 
inevitably  result  from  it. 

FEELING 

By  feeling  is  here  meant  feelings  of  a  certain  class. 
In  one  sense,  desires  are  feelings,  and  we  may  speak 
quite  correctly  of  desires  being  felt;  but  there  is  a  clear 
difference  of  class  and  nature  between  such  a  desire  as 
hunger,  or  such  an  aversion  as  that  from  cold,  and  such 
feelings  as  those  of  anger  or  fear  or  admiration.  The 
difference  consists  in  this,  that  desires  well  up  sponta- 


66  CRIME  AND  CRIMINALS 

neously  from  the  depths  of  our  nature,  are  in  origin  in- 
dependent of  circumstances,  and  in  their  primitive  and 
general  form  will  be  felt  whatever  the  circumstances  are ; 
while  feelings  of  the  second  class,  now  to  be  considered, 
feelings  in  the  restricted  sense,  are  elicited  by  circum- 
stances, are  dependent  on  circumstances,  and  in  the 
absence  of  their  appropriate  and  several  provocations 
would  never  be  felt  at  all.  The  desire  for  food,  the 
desire  for  exercise  and  for  rest,  the  desire  for  sleep,  the 
desire  for  companionship,  the  crude  sexual  desire,  the 
desire  of  women  for  motherhood,  all  these  are  sponta- 
neous. They  need  no  circumstances  to  elicit  them,  though 
no  doubt  they  are  susceptible  of  direction,  focusing,  and 
intensification  by  appropriate  circumstances.  Hunger, 
for  instance,  makes  itself  felt  without  any  provocation 
from  the  sight  or  smell  of  food,  though  the  sight  or  smell 
of  food  may  make  the  desire  more  prominent,  may  draw 
attention  to  it  when  it  is  but  subconsciously  in  the  mind, 
may  sway  the  desire  in  this  direction  or  in  that,  or  con- 
centrate it  upon  a  visible  article  of  food  present  in  the 
circumstances.  Still,  hunger  is  felt  quite  independent  of 
circumstances,  and  whether  food  is  accessible  or  not. 
But  anger  does  not  well  up  in  this  spontaneous  way  with- 
out any  provoking  agent  in  the  circumstances.  For  anger 
to  be  felt,  it  must  be  provoked.  The  angry  man  does  not 
become  angry,  as  the  hungry  man  becomes  hungry,  by 
merely  sitting  still  in  vacua  and  waiting  for  the  feeling 
to  make  itself  felt.  He  must  be  acted  upon  by  some 
agent  external  to  himself,  or,  what  is  the  same  thing  for 
the  present  purpose,  he  must  believe  that  he  is  acted  upon 
antagonistically,  or  threatened  with  antagonistic  action, 
before  the  feeling  of  anger  appears.  The  feeling  will 
never  come  into  being,  even  in  the  most  general  and  un- 
directed form,  until  it  is  stirred  up  and  elicited  by  action 


THE  PSYCHOLOGY  OF  CRIME  67 

from  without.  No  doubt  the  capacity  to  feel  anger  must 
be  inherent  and  innate,  or  no  provocation  will  elicit  it; 
but  however  great  the  capacity,  the  feeling  will  not  arise 
in  the  absence  of  provocation,  or  of  what  is  regarded  to 
be  provocation.  The  difference  is  even  clearer  with 
simpler  sensations.  A  man  cannot  appreciate  color  if 
he  is  color-blind.  He  must  have  the  innate  and  inherent 
capacity  to  feel  color,  or  he  will  never  experience  the 
feeling;  but  however  completely  developed  may  be  his 
capacity  for  feeling  green  or  blue,  he  will  not  experience 
eith&f"of  these  feelings  in  the  dark;  nor  will  he  experi- 
ence these  in  the  light  unless  light-waves  of  the  proper 
wave-length  impinge  upon  his  retina.  The  occasion  of 
the  feeling  is  its  provocation  and  elicitation  by  actions 
from  without. 

Elicited  feelings  are  of  two  main  classes:  the  crude 
and  simple  feelings  that  are  called  sensations,  dye  to 
direct  action  on  the  organs  of  sense,  such  as  contact, 
color,  taste,  sound,  smell,  temperature,  and  so  forth,  with 
which  we  are  not  here  concerned;  and  the  more  com- 
plicated and  elaborate  feelings  that  we  call  emotions, 
which  differ  from  sensations  in  that  some  knowledge  of 
the  agent  that  produces  them  as  well  as  of  the  action 
must  enter  into  the  composition  of  the  emotion;  and  the 
feeling  has  a  special  direction  towards  the  agent  whose 
action  provokes  it,  starts  a  special  reaction  on  the  part  of 
the  person  who  experiences  the  emotion. 

The  chief  crime-producing  emotions  are  anger,  fear, 
and  jealousy;  and  the  jurisprudence  of  every  country 
admits  the  existence  of  these  emotions  in  the  criminal  as 
to  some  extent  an  excuse  for  his  crime.  The  French 
appear  to  regard  the  crime  passionnel  as  a  mere  pecca- 
dillo, even  when  it  amounts  to  murder;  and  in  our  own 
law,  unpremeditated  homicide,  committed  in  the  heat  of 


68  CRIME  AND  CRIMINALS 

anger  upon  adequate  provocation,  is  reduced  from  mur- 
der to  manslaughter.  And  so  it  is  with  the  emotions  of 
fear  and  jealousy.  When  in  fear  of  his  life,  a  man  may 
do  without  incurring  punishment  that  which,  done  in 
other  circumstances  not  provocative  of  fear,  would  be 
punishable  as  a  crime;  and  the  same  is  true  of  jealousy 
in  certain  circumstances. 

In  other  cases,  the  emotion  under  whose  influence  a 
crime  is  committed  aggravates  the  turpitude  of  the  crime. 
This  is  specially  true  of  hatred  and  vindictiveness,  which 
supply  in  its  highest  intensity  that  "  malice  aforethought  " 
which  is  a  necessary  ingredient  in  the  crime  of  murder. 
Anger  and  hatred  constitute  the  states  otherwise  called 
respectively  hot  blood  and  cold  blood;  and  crime  com- 
mitted in  hot  blood  is  always  regarded  as  of  mitigated 
turpitude,  while  cold  blood  intensifies,  all  the  world  over, 
the  crime  committed  under  its  influence. 

These,  then,  are  the  main  factors  in  the  psychology  of 
crime,  and  it  will  be  seen  from  our  examination  that 
there  is  no  special  psychology  peculiar  to  criminals. 
Criminal  psychology  is  but  a  part  of  general  psychology. 
In  order  to  account  for  the  commission  of  crime,  there 
is  no  need  to  call  in  aid  any  new  or  special  factor  in  the 
mental  constitution  of  the  criminal  that  is  absent  in  the 
ordinary  law-abiding  citizen,  or  to  suppose  the  absence 
of  any  mental  factor  with  which  the  ordinary  law-abiding 
citizen  is  provided.  The  mind  of  the  criminal  is  consti- 
tuted of  the  very  same  elements,  that  act  in  the  very 
same  way,  as  those  that  constitute  the  minds  of  other 
people;  the  only  difference,  when  there  is  a  difference, 
being  that,  whereas  in  no  two  persons  are  all  these  factors 
severally  of  equal  strength  and  combined  in  equal  pro- 
portions, in  some  criminals  some  of  the  factors  are  un- 


THE  PSYCHOLOGY  OF  CRIME  69 

usually  well  or  ill  developed,  and  the  constitution  as  a 
whole  contains  them  in  proportions  differing  rather  more 
widely  from  the  average  or  mean  than  do  the  mental 
constitutions  of  other  men.  In  what  respect  these  pro- 
portions differ  we  shall  consider  presently;  in  the  mean- 
time all  that  is  necessary  is  to  note  that  the  differences 
are  differences  of  degree  and  proportion,  and  not  of  kind. 


CHAPTER  III 
THE  NATURE  OF  CRIME 

THE  word  "  crime  "  is  used  in  very  various  senses  by 
different  persons  on  different  occasions.  Stephen,  follow- 
ing Austin,  defines  it  as  an  act  or  omission  that  the  law 
punishes;  and  this  definition  has  in  a  high  degree  the 
merit  that  every  definition  ought  to  possess,  that  it  does 
define.  It  is  a  clear  and  unmistakable  definition.  But  it 
is  not  the  only  one  in  use.  In  English  law  the  term  is 
often  understood  as  restricted  to  those  more  serious  acts 
and  omissions  that  may  be  the  subject  of  indictment,  and 
are  triable  at  assizes  and  quarter  sessions;  while  all  un- 
lawful acts  and  omissions  that  are  of  a  minor  gravity, 
and  are  triable  at  courts  of  first  instance,  are  distin- 
guished from  crimes,  and  called  offenses.  There  is  a 
certain  incongruity  in  applying  the  term  "  crime,"  as  it 
must  be  applied  in  Austin's  and  Stephen's  definitions,  to 
the  act  of  a  pedlar  in  pursuing  his  trade  without  a  license, 
or  the  omission  of  a  bicyclist  to  keep  his  lamp  alight 
after  dark.  In  popular  language  such  offenses  would  not 
be  called  crimes,  and  in  popular  language  the  terms 
"  crime  "  and  "  criminal  "  are  frequently  applied  to  acts 
and  omissions  that  arouse  the  moral  reprobation  of  the 
writer  or  speaker,  but  are  not  punishable  by  law.  Politi- 
cians, who  are  much  addicted  to  the  use  of  expressions 
stronger  than  the  facts  warrant,  frequently  speak  of  the 
acts  of  their  political  opponents  as  criminal,  meaning,  not 
that  they  are  infringements  of  the  law,  but  merely  that 
they  are  to  be  disapproved.  The  omission  of  an  ambas- 
70 


THE  NATURE  OF  CRIME  71 

sador  to  transmit  some  important  piece  of  information 
to  his  government  has  been  called  criminal,  though  it 
infringed  no  law.  The  word  is  used  as  a  term  of  strong 
condemnation,  and  not  in  any  legal  sense.  Charles  I. 
and  James  II.  have  been  said  by  excited  historians  to 
have  been  guilty  of  crimes,  though  of  course  the  word  is 
misapplied  to  any  act  or  omission  of  an  English  sov- 
ereign, who  is  by  the  constitution  of  these  realms  incap- 
able of  illegality,  and  amenable  to  no  law.  Again,  the 
term  "  a  criminal "  is  sometimes,  as  by  Dr.  Goring,  re- 
stricted to  a  person  who  has  been  convicted  of  indictable 
crime.  Austin  and  Stephen  would  mean  by  the  term  a 
person  who,  whether  convicted  or  not,  has  been  guilty 
of  any  offense  against  any  law.  Lombroso  means  by  it 
the  kind  of  person  who  is  in  Lombroso's  opinion  likely  to 
commit  crime,  or  marked  with  certain  stigmata  or  char- 
acters, physical  or  mental. 

My  own  definition  of  crime  coincides  in  the  main  with 
that  of  Austin  and  Stephen,  but  with  this  difference,  that 
I  shall  regard  it  as  consisting  of  acts  and  omissions  that 
are  infractions  of  the  law,  not  as  it  is,  but  as  I  conceive 
it  ought  to  be ;  and  I  shall  define  a  criminal  as  a  person 
who  has  committed  any  such  act  or  omission.  Neverthe- 
less, as  there  is  a  certain  incongruity  in  speaking  of  trivial 
breaches  of  by-laws  as  crimes,  I  shall  often  use  the  term 
"  offense "  in  the  sense  in  which  Austin  would  use 
"  crime." 

"  Much  discussion,"  says  Sir  Fitz James  Stephen,  "  has 
taken  place  on  subjects  connected,  or  supposed  to  be 
connected,  with  criminal  law,  which  I  leave  on  one  side 
because  it  seems  to  me  at  once  idle  and  interminable. 
The  subject  in  question  is  usually  called  the  Right  to 
Punish.  On  what  ground,  it  is  asked,  and  under  what 
limitations,  has  society  a  right  to  punish  individuals? 


72  CRIME  AND  CRIMINALS 

These  questions  appear  to  me  to  be  almost  entirely  un- 
meaning, and  quite  unimportant.  Societies  are  stronger 
than  their  individual  members,  and  do  as  a  fact  system- 
atically hurt  them  in  various  ways  for  various  acts  and 
omissions.  The  practice  is  useful  under  certain  condi- 
tions. What  these  conditions  are  is  a  question  for  legis- 
lators. If,  all  matters  being  duly  considered,  the 
legislature  considers  it  expedient  to  punish  a  given  action 
in  a  given  way,  I  think  they  would  be  guilty  of  weakness 
if  they  did  not  punish  the  actors  in  that  way  although 
they  had  no  right  to  do  so.  If  they  consider  it  inex- 
pedient that  the  act  should  be  punished,  they  would  be 
cruel  if  they  punished  it,  however  great  a  right  they 
might  have  to  do  so.  On  this  account  the  whole  of  the 
discussion  as  to  the  right  to  punish  appears  to  me  super- 
fluous. I  think,  indeed,  that  from  the  nature  of  the  case 
any  conclusion  as  to  any  right  alleged  to  exist  anteced- 
ently to  and  independently  t)f  some  law  from  which  it 
is  derived  must  be  arbitrary  and  fanciful." 

Sir  Fitz James  Stephen  wrote  as  a  lawyer,  and  the  book 
from  which  the  foregoing  extract  is  taken  is  a  book  on 
law — on  the  History  of  the  Criminal  Law, — and  no 
doubt  from  the  point  of  view  of  a  lawyer  he  was  right. 
Such  discussion  would  be  quite  out  of  place  in  a  book 
on  law,  but  it  is  by  no  means  out  of  place  in  a  book  on 
jurisprudence.  It  is  the  function  of  the  legislature,  as 
Sir  Fitzjames  Stephen  says,  to  enact  punishments  for 
those  acts  and  omissions  that  it  is  expedient  to  punish; 
but  the  question  of  expediency  is  for  the  jurisprudent. 
It  is  for  the  jurisprudent  to  instruct  the  legislature  as  to 
what  acts  and  omissions  ought  to  be  punished  and  what 
ought  not,  and  a  jurisprudent  would  neglect  his  duty, 
a  book  on  jurisprudence  would  lack  its  most  important 
factor,  if  this  instruction  were  not  imparted.  Idle  and 


THE  NATURE  OF  CRIME  73 

superfluous  as  such  discussion  is  in  a  book  treating  of 
law  as  it  exists,  it  is  neither  idle  nor  superfluous,  it  is  of 
great  importance,  in  a  treatise  on  jurisprudence — that  is 
to  say,  on  the  science  of  law,  which  discusses  not  only 
what  the  law  is,  but  also  what  it  ought  to  be.  What  the 
law  ought  to  be  cannot  be  determined  without  going  back 
to  first  principles  and  discovering  the  foundation  upon 
which  the  law  rests. 

Law  consists  of  a  body  of  regulations  imposed  upon 
the  members  of  a  nation  by  some  person  or  body  of  per- 
stonis  ruling  the  nation;  and  it  will  be  generally  admitted 
that  these  regulations  are  right  or  wrong,  just  or  unjust, 
according  as  they  do  or  do  not  conduce  to  the  welfare 
of  the  nation  as  a  whole,  and  do  not  or  do  exclusively 
favor  any  individual  or  class  or  body  of  individuals,  to 
the  detriment,  or  even  to  the  exclusion,  of  the  rest.  For 
ages  past,  mankind  have  been  familiar  with  the  concept 
of  a  nation  as  a  separate  and  distinct  individual  thing, 
distinguishable  on  the  one  hand  from  other  nations,  and 
on  the  other  from  its  own  component  individuals.  For 
generations  past,  men  have  been  accustomed  to  speak  of 
the  welfare,  of  the  nation,  the  prosperity  and  adversity 
of  nations,  the  successes  and  disasters  of  nations,  the 
growth  and  decay  of  nations,  and  generally  to  speak  of 
nations,  not  only  as  separate  individual  things  having 
each  an  individuality  of  its  own,  but  as  living  things,  as 
live  individuals.  No  doubt,  in  thus  speaking,  our  ances- 
tors meant  it  to  be  understood  that  they  were  speaking 
metaphorically  and  by  analogy;  but  the  genius  of  Her- 
bert Spencer  has  taught  us  that  "  the  life  of  a  nation  " 
is  a  literally  accurate  expression — that  a  nation  is  a  living 
organism,  subject  to  all  the  laws  of  growth,  reproduction, 
and  decay  to  which  other  organisms  are  subject,  and,  like 
all  other  organisms,  engaged  in  the  struggle  for  life.  It 


74  CRIME  AND  CRIMINALS 

may  seem  a  far  cry  from  the  promulgation  of  a  law  to 
the  struggle  for  life,  but  in  truth  the  first  is  but  a  phase 
of,  and  an  incident  in,  the  second. 

It  is  pretty  generally  understood  that  every  organism, 
whether  animal  or  plant,  and  every  race  of  organisms, 
whether  of  animals  or  plants,  is  engaged  in  a  ceaseless 
struggle  for  survival.  Every  individual  and  every  race 
must  maintain  itself  against  the  depredations  of  other 
individuals  and  other  races,  against  the  competition  of 
the  rest  of  the  organic  world  for  food  and  space  and 
other  necessaries  of  existence,  and  against  the  incidence 
of  destructive  inorganic  forces  to  which  it  is  constantly 
or  occasionally  subject.  It  is  perhaps  less  generally 
understood  that  every  society  is  similarly  compelled  to 
struggle  for  its  life,  and  in  especial  that  the  assumption  of 
the  social  state  by  both  animals  and  plants  is  an  incident 
in  the  struggle,  and  a  device  adopted  as  an  aid  to  sur- 
vival. 

The  devices  adopted  by  animals  and  plants  for  this 
purpose  are  innumerable.  Some  owe  their  safety  to 
speed  and  agility  in  pursuit,  or  in  escaping  from  pursuit; 
some  to  strength  and  formidable  weapons  of  offense; 
some  to  spiny  and  pricky  weapons  of  defense;  some  to 
impenetrable  armor,  which  renders  them  invulnerable. 
Some  are  protected  from  attack  by  the  acrid  taste  of  their 
skins  or  bodies;  some  to  an  appalling  stench,  which  repels 
attack;  many  depend  on  concealment;  many  on  parasitism 
on  some  larger  and  more  generally  efficient  host.  Some 
forms  of  life  survive  by  reason  of  their  astounding  fer- 
tility, which  speedily  makes  good  whatever  inroads  are 
'made  upon  their  numbers;  others  by  reason  of  their  in- 
telligence, which  enables  them  to  compete  successfully 
against  competitors  far  superior  in  speed,  strength,  and 
other  qualities;  others  again  by  reason  of  poisonous  wea- 


THE  NATURE  OF  CRIME  75 

pons;  and  so  forth.  The  tricks,  devices,  and  stratagems 
that  are  pressed  into  the  service  of  survival  are  endless 
and  innumerable;  but,  of  them  all,  none  is  more  effi- 
cacious, none  is  more  successful,  none  is  adopted  by  so 
large  a  number  and  variety  of  different  kinds  of  organ- 
isms, as  that  of  living  together  in  communities.  By  this 
additional  safeguard  the  elephant,  the  bison,  and  the  hip- 
popotamus supplement  their  bulk  and  strength;  the  ante- 
lope and  the  deer  their  speed;  the  bee  and  the  wasp  their 
poisoned  stings  and  their  intelligence ;  the  ant  her  minute- 
uess;  the  wolf  his  speed,  wind,  strength,  and  ferocity; 
the  beaver  and  the  rabbit  the  inaccessibility  of  their 
haunts;  and  many  other  animals  supply  the  place  of  quali- 
ties in  which  they  are  wanting,  or  supplement  qualities 
that  would  seem  alone  to  be  efficient.  Mankind  in  especial 
has  neither  weapons  of  offense  nor  weapons  of  defense; 
neither  the  strength,  the  swiftness,  nor  the  agility  of 
other  animals  of  his  size;  neither  habits  of  concealment 
nor  inaccessibility  of  haunts;  neither  spines  nor  defensive 
armor:  yet  he  has  achieved  the  mastery  over  every  other 
organism  on  the  face  of  the  earth  with  the  exception  of 
certain  microscopic  parasities,  and  he  has  already  rend- 
'ered  some  of  these  innocuous,  and  is  in  a  fair  way  to 
obtain  the  mastery  over  others.  Moreover,  he  has  at- 
tained to  a  relative  immunity  from  the  action  of  inorganic 
forces,  and  an  ability  to  utilize  them  for  his  own  purpose, 
that  is  not  even  distantly  approached  by  any  other  animal. 
This  superior  valency  over  every  other  form  of  life  man 
owes  mainly  to  his  social  habit.  It  is  the  habit  of  living 
in  associated  numbers,  in  organized  societies,  that  renders 
him  powerful,  and  enables  him  to  utilize  his  superior  in- 
telligence; nay,  it  is  to  the  same  habit  that  he  owes  in 
great  part  his  superior  intelligence,  and  almost  entirely 
his  mastery  over  the  forces  of  inorganic  nature.  Sup- 


76  CRIME  AND  CRIMINALS 

posing  it  possible  for  man  to  revert  to  the  solitary  habit, 
he  would  soon  revert  to  the  status  of  the  gorilla.  Every 
conquest  of  man  over  other  animals,  every  success  in  com- 
petition with  them,  every  conquest  over  inorganic  nature, 
has  been  due  to  organized  combination ;  that  is  to  say,  to 
a  combination  of  effort  in  which  several  individuals,  act- 
ing in  different  ways,  combined  their  efforts  to  achieve  a 
common  purpose.  Every  human  achievement  of  moment 
has  been  due  to  specialization  of  effort  and  of  employ- 
ment, and  specialization  is  not  possible  except  in  social 
life.  When  life  is  lived  in  solitude  or  in  pairs,  every- 
thing necessary  for  preservation  and  survival  must  be 
done  by  each  individual  or  each  pair;  and  excellence  in 
any  department  of  effort  is  unattainable,  because  effort 
must  be  dissipated  over  many  departments,  and  cannot  be 
concentrated  upon  any  one.  Hence  neither  sufficient 
thought  nor  sufficient  practice  to  obtain  high  proficiency 
can  be  given  to  any  one  object.  In  an  organized  society, 
functions  are  divided;  and  by  the  devotion  of  some  to 
one  employment  and  some  to  another,  each  is  performed 
more  efficiently,  and  the  sum  total  of  product  is  increased. 
When  some  make  tools,  others  cultivate  the  ground,  and 
others  weave  cloth,  not  only  will  the  tools  be  better  made, 
the  crops  and  the  cloth  be  of  better  quality,  but  there 
will  be  more  tools,  more  vegetable  food,  and  more  cloth- 
ing for  the  three  than  if  each  divided  his  time  between 
tool-making,  cultivation,  and  weaving.  And  there  are  in- 
numerable things  that  could  never  be  done  at  all  except 
by  the  organized  and  concerted  action  of  many  men ;  and 
many  other  things  that  could  never  be  done  unless  leisure 
for  some  were  provided  by  the  work  of  others.  If  every 
man  had  to  collect  his  own  food,  build  his  own  house, 
make  his  own  clothes,  prepare  his  own  food,  and  make 
his  own  furniture  and  utensils,  there  would  be  no  roads, 


THE  NATURE  OF  CRIME  77 

no  bridges,  no  houses,  no  vehicles,  no  ships,  no  wells,  no 
mills,  no  forges.  There  would  be  no  literature,  no  art, 
no  science,  no  commerce,  no  law,  no  medicine,  no  wealth, 
no  leisure;  nothing  that  makes  the  life  we  live  worth 
living;  nothing  that  raises  man  above  the  level  of  the 
beast.  But  for  the  social  habit,  man  would  never  have 
risen  to  the  status  of  man.  He  would  never  have  at- 
tained even  to  the  stage  of  advancement  of  the  Stone 
Age.  He  would  have  remained  an  anthropoid  simian, 
and  would  never  have  needed  to  concern  himself  with 
tbernature  of  crime,  for  to  him  crime  would  have  been 
impossible. 

Crime  is  an  incident  of  the  social  state.  A  solitary 
person  cannot  commit  crime,  for  the  mark  and  character- 
istic of  crime  is  that  it  is  detrimental  to  the  society  in 
which  and  against  which  it  is  committed.  Apart  from  a 
society  to  be  injured  by  it,  there  can  be  no  crime. 
Abandon  a  man  to  himself  in  a  desert,  or  maroon  him 
on  an  otherwise  uninhabited  island,  and,  whatever  other 
disadvantages  he  may  suffer,  he  is  freed  from  the  tempta- 
tion to  commit  crime.  He  cannot  murder,'  steal,  or  de- 
fraud; he  cannot  commit  treason,  or  rape,  or  burglary, 
or  riot;  he  cannot  beg,  or  rob,  or  wreck  a  train,  or  pick 
a  pocket,  or  fire  a  stack.  As  far  as  crime  is  concerned 
he  is  condemned  to  a  blameless  life. 

In  the  scheme  of  Nature,  the  individual  animal  or 
plant  does  not  count,  or  scarcely  counts,  except  as  a 
means  of  perpetuating  the  race  to  which  it  belongs.  If 
we  permit  ourselves  for  a  moment  to  personify  Nature, 
we  may  say  that  the  individual  is  in  her  eyes  only  a  link 
in  a  chain,  only  a  means  to  an  end,  valued  only  as  a 
parent,  to  be  fostered  and  cherished  until  the  parental 
function  is  accomplished,  and  then  to  be  flung  aside  as  of 
no  more  worth.  If  the  young  require  parental  care,  then 


78  CRIME  AND  CRIMINALS 

the  life  of  the  parent  must  be  prolonged  after  the  young 
have  come  into  existence;  but  if  they  do  not,  and  if  the 
arrangement  made  is  that  but  one  brood  is  produced, 
then  as  soon  as  this  brood  is  produced  the  parent  is  of 
no  further  value,  and  dies.  Thus,  annual  plants  die  as 
soon  as  their  seed  is  ripe;  annual  animals,  such  as  the 
ephemera,  die  as  soon  as  their  eggs  are  laid. 

Every  animal  has  been  provided  by  Nature,  or,  to 
drop  the  metaphor,  has  acquired  by  natural  selection  in 
the  course  of  evolution,  such  instinctive  desires  as  shall 
impel  it  to  those  acts  and  that  course  of  conduct  best 
fitted  to  attain  the  purposes  of  its  existence;  and  as  the 
main  purpose  of  its  existence  is  the  production  of  off- 
spring, so  the  primary  and  fundamental  instinctive  de- 
sires of  every  animal  are  those  which  conduce  directly 
or  indirectly  to  the  production  of  offspring — desires  for 
courtship,  exclusive  possession,  sexual  union,  parenthood, 
and  so  forth. 

In  order  that  reproduction  may  be  successfully  per- 
formed, a  certain  preliminary  course  of  conduct  must  be 
pursued;  and  since  this  course  of  conduct  is  a  necessary 
antecedent  to  reproduction,  the  instinctive  desires  that 
prompt  to  this  course  of  conduct  have  been  acquired,  and 
for  a  time  take  rank  of  those  directly  conducing  to  re- 
production, supersede  and  overpower  them,  or  form  pre- 
liminary substitutes  for  them.  No  animal  is  born  fit  to 
reproduce  its  kind.  It  is  born  immature,  and  especially 
sexually  immature.  Even  when  reproduction  is  not 
sexual,  a  certain  interval  devoted  to  growth  and  develop- 
ment must  elapse  before  reproduction  can  take  place.  If 
reproduction  is  to  take  place,  it  is  manifestly  necessary 
that  the  organism  should  survive  this  interval,  that  its 
life  should  be  preserved  until  the  reproductive  age  and 
power  are  attained.  For  this  interval  to  be  safely  tided 


THE  NATURE  OF  CRIME  79 

over,  and  such  conduct  must  be  pursued  as  shall  conduce 
to  self-preservation,  and  such  instinctive  desires  or  mo- 
tives must  exist  as  shall  prompt  the  animal  to  pursue  the 
appropriate  modes  of  conduct.  Hence  a  second  set  of 
instinctive  desires  has  been  acquired  by  natural  selection 
— the  desire  of  self-preservation,  and  the  desires  and 
aversions  that  actuate  conduct  conducing  to  this  end.  In 
those  cases  in  which  a  reproductive  act  is  not  an  isolated 
one,  but  is  repeated  from  time  to  time  in  the  history  of 
the  individual,  it  is  necessary,  if  reproduction  is  to  be 
full^-and  copious,  that  the  life  of  the  individual  should 
be  preserved  as  long  as  the  power  of  reproduction  per- 
sists; and  hence  in  these  animals  the  instinctive  desires 
conducing  to  self-preservation  come  to  be  a  permanent 
possession.  In  early  life,  in  immaturity,  the  desires  of 
this  class  are  paramount;  and  when  the  reproductive  age 
and  power  are  attained,  they  divide  the  supremacy  with 
the  reproductive  desires.  Hence  every  animal  is  furn- 
ished with  two  primary  sets  of  instinctive  desires — those 
that  conduce  to  self-preservation  and  those  that  conduce 
to  reproduction;  and  each  set  is  from  time  to  time  para- 
mount, takes  rank  of  the  other,  and  preponderates  over 
the  other. 

The  next  point  to  be  noted  is  that,  although  the  self- 
preservation  instincts  are  necessary  to  the  attainment  of 
reproductive  age  and  power,  and  therefore  ultimately 
conduce  to  the  same  end,  yet  there  is  a  decided  antagon- 
ism, and  at  some  times  a  strong  antagonism,  between  the 
two.  The  function  of  reproduction  cannot  be  exer- 
cised without  some  damage,  or  at  least  danger,  to  the  life 
of  the  parent;  and  while  conduct  conducing  to  self- 
preservation  is  being  pursued,  reproductive  conduct  must 
be  in  abeyance.  Each  mode  of  conduct  demands  for  its 
fulfilment  a  certain  sacrifice  of  the  other.  This  is  very 


8o  CRIME  AND  CRIMINALS 

clear  in  many  of  the  lower  animals,  in  which  the  deposi- 
tion of  eggs  by  the  female  is  immediately  fatal,  as  is  also 
the  execution  of  the  function  of  fertilization  by  the  male. 
In  mankind,  not  only  are  pregnancy  and  parturition  at- 
tended by  many  dangers  and  disadvantages,  but  also  the 
duties  of  parenthood  constitute  for  years  a  drain  upon 
the  resources  of  both  parents,  which  diminishes  their  life- 
worthiness,  exacts  from  them  sacrifices  of  time,  labor, 
and  nutriment  that  might  otherwise  go  to  the  prolonga- 
tion of  their  own  lives,  and  so  is  antagonistic  to  self- 
preservation.  In  situations  of  danger,  the  impulse  of  the 
parent  is  to  incur  the  danger,  and  even  to  sacrifice  life, 
in  order  to  preserve  the  life  of  the  offspring;  and  if  the 
parent  were  sedulous  to  preserve  its  own  life,  the  life  of 
the  offspring  would  often  be  sacrificed.  Hence  there  is 
always  a  certain  antagonism  between  the  two  sets  of 
activities,  and  therefore  between  the  two  sets  of  instincts 
that  prompt  them.  The  welfare  of  the  race  demands 
that  a  proper  proportion  and  balance  should  be  main- 
tained between  the  two,  and  that  sometimes  the  one  and 
sometimes  the  other  set  should  preponderate  and  take 
the  lead.  Since,  cceteris  paribus,  the  strength  of  an  in- 
stinctive desire  is  proportionate  to  the  length  of  time  dur- 
ing which  it  has  existed  in  the  race,  and  to  its  importance 
for  the  preservation  of  the  race ;  and  since  both  the 
desire  conducing  to  reproduction  and  the  desires  conduc- 
ing to  self-preservation  are  primordial,  have  existed 
from  the  earliest  dawn  of  animal  life,  and  have  persisted 
throughout  the  whole  long  ancestry  of  man;  and  since, 
moreover,  they  are  both  vitally  necessary  to  the  preserva- 
tion of  the  race;  they  are  of  approximately  equal  power, 
though,  as  has  been  said,  sometimes  the  one  and  some- 
times the  other  assumes  the  predominance  and  determines 
the  mode  of  conduct. 


THE  NATURE  OF  CRIME  81 

In  social  animals,  a  third  set  of  activities,  and  a  third 
set  of  instinctive  desires  prompting  to  these  activities,  is 
added  to  the  two  already  considered.  These  are  the 
activities,  and  the  instinctive  desires  actuating  them,  that 
conduce  to  the  preservation  of  the  society  to  which  the 
animal  belongs.  Social  life  has  been  adopted  as  an  aid 
to  survival.  Of  course,  I  do  not  mean  that  it  has  been 
consciously,  deliberately,  or  intentionally  adopted  with 
any  such  purpose  in  view.  I  mean  that  as  association 
did  in  fact  aid  in  the  survival  of  the  race,  and  in  less 
degTee  of  the  individuals,  that  adopted  the  social  habit, 
those  who  showed  an  inclination  to  live  together  would 
survive  in  greater  numbers  and  prevail  in  the  competition 
with  those  who  lived  solitary;  and  thus  the  inclination 
would  be  confirmed  and  increased  with  every  successive 
generation.  The  inclination — that  is  to  say,  the  desire 
— to  live  socially  would  gradually  become  intensified  until 
it  became  inescapable,  and  in  some  animals  paramount,  as 
we  now  see  it. 

The  social  habit  is,  as  we  have  seen,  the  most  power- 
ful and  efficient  of  all  aids  to  survival,  and  is  capable  of 
superseding  and  replacing  all  others.  It  conduces  to  the 
survival  both  of  the  individuals  that  compose  the  society 
and  of  the  race  to  which  they  belong,  and  thus  has  a 
double  potency.  Social  conduct  is  therefore  extremely 
important  in  social  animals;  and  in  them  there  has  grown 
up  a  set  of  instinctive  desires  that  prompt  to  social  con- 
duct, and  this  introduces  us  to  a  new  aspect  of  organic 
life. 

The  society  has  a  life  of  its  own.  It  may  be  contem- 
plated as  in  itself  a  separate  organism,  living  its  own 
life,  subject  to  the  struggle  for  existence,  passing  through 
stages  of  inception,  growth,  maturity,  decline,  and  death, 
and  reproducing  itself  either  by  budding  or  by  the  com- 


82  CRIME  AND  CRIMINALS 

mingling  of  two  societies  in  strict  conformity  with  the 
life  of  an  individual.  Nay,  the  similarity  extends  even 
further.  As  the  cells  composing  the  multicellular  animal 
have  their  own  lives,  and  are  born,  become  mature,  die, 
and  are  shed  by  the  animal,  which  still  lives  on  and 
thrives  after  it  has  shed  them,  so  the  individuals  com- 
prising the  society  have  their  own  lives,  and  are  born, 
live  to  maturity,  decline  and  die,  and  are  shed  by  the 
society,  which  still  lives  and  thrives  in  spite  of  their  loss. 
As  the  cells  composing  the  multicellular  animal  combine, 
like  with  like,  to  compose  the  several  tissues  performing 
several  functions  in  the  life  of  the  animal,  so  the  several 
individuals  composing  the  society  combine,  like  with  like, 
to  compose  the  several  classes  performing  several  func- 
tions in  the  life  of  the  society.  The  analogy — or  rather 
the  similarity,  for  it  is  much  more  than  an  analogy — may 
be  pushed  much  further,  but  it  is  unnecessary  to  do  so 
here.  All  that  we  need  notice  is  that,  while  every  cell 
in  the  animal  must  live  its  own  life,  assimilate  its  own 
nourishment  (in  which  it  competes  with  its  fellows), 
preserve  its  own  integrity,  and  pursue  its  own  activity,  yet 
it  must  do  so  in  strict  subordination  to  the  welfare  of 
the  whole  animal,  or  the  animal  will  die,  and  with  it  will 
die  all  the  cells  that  compose  it,  including  the  insubordin- 
ate cell.  If  any  part  of  the  animal,  any  cell  or  group  of 
cells,  misbehaves  or  fails  to  perform  its  duty  to  the 
whole,  it  must  be  cut  off  and  cast  out  of  the  body,  or  it 
will  imperil  the  life  of  the  animal,  together  with  the 
lives  of  all  the  component  cells. 

It  is  the  same  with  the  social  body.  Every  component 
individual  must  live  its  own  life,  find  its  own  means  of 
living,  in  which  it  competes  with  its  fellows,  and  pursue 
its  own  activity,  but  always  in  strict  subordination  to  the 
welfare  of  the  whole  society,  or  the  society  will  perish, 


THE  NATURE  OF  CRIME  83 

and  with  it  will  perish  all  the  individuals  composing 
the  society,  including  that  one  or  those  that  fail  in 
duty. 

Hence  every  social  animal  possesses  an  additional 
group  of  activities,  an  additional  range  of  conduct,  and 
an  additional  set  of  instinctive  desires  prompting  to  con- 
duct of  this  additional  order.  In  addition  to  the  common 
desires  of  self-preservation,  self-welfare,  and  of  repro- 
duction that  every  animal  possesses,  the  social  animal  has 
a  new  set  of  desires,  prompting  it  to  conduct  conducive  to 
the~welfare  of  the  society  to  which  it  belongs  and  of 
which  it  constitutes  an  integral  part. 

Two  most  important  features  of  this  mode  of  conduct, 
and  of  the  desires  which  prompt  it,  are  to  be  noted.  In 
the  first  place,  as  self-preservative  conduct  is  antagonistic 
to  reproductive  conduct,  and  in  some  respects  or  in  some 
emergencies  the  two  are  incompatible,  so  social  conduct 
is  antagonistic  to  both,  and  is  in  some  respects  and  in 
some  emergencies  incompatible  with  either.  In  the  second 
place,  we  have  seen  that  instinctive  desires  are,  other 
things  equal,  proportionate  in  power  and  intensity  to  the 
time  during  which  they  have  existed  in  the  race  and  to 
their  importance  in  survival.  Now,  the  social  instincts 
are  of  the  highest  importance  to  survival,  both  directly 
to  the  survival  of  the  society  and  indirectly  to  the  survival 
of  the  individual,  and  therefore  we  may  expect  on  this 
account  to  find  them  highly  developed  and  powerful;  but, 
on  the  other  hand,  they  are  of  comparatively  recent 
'origin.  As  long  as  man  has  been  man,  ever  since  he 
arrived  at  the  status  of  manhood,  and  probably  for  long 
before  this  stage  in  his  evolution,  he  has  been  a  social 
animal;  but  this  stage  in  his  evolution  is  comparatively 
modern.  It  is  modern  in  comparison  with  the  inconceiv- 
ably long  duration  of  his  pre-human  ancestry,  during  a 


84  CRIME  AND  CRIMINALS 

great  part  of  which  he  had  not  yet  assumed  the  social 
habit.  Hence  on  this  account  the  social  instincts  are 
likely  to  be  defective.  In  experience  we  find  that  in  many 
men  they  are  defective.  As  they  are  of  great  importance, 
they  are  likely  to  be  strongly  developed;  as  they  are  of 
comparatively  recent  origin,  they  are  unlikely  to  be  fully 
developed.  In  experience  we  find  that  in  some  they  are 
developed  strongly  and  even  to  excess,  and  that  in  others 
they  are  developed  feebly  and  in  defect.  Let  us  now 
examine  what  these  instincts  are. 

The  fundamental  social  instinct  (I  here  use  instinct 
as  short  for  instinctive  desire)  is  the  desire  of  each  social 
animal  for  the  companionship  of  beings  like  itself.  Every 
social  animal  is  ill  at  ease  in  solitude,  and  desires  thd 
companionship  of  its  fellows.  I  do  not  say  that  it  is 
never  content  to  be  alone,  but  I  assert  emphatically  that 
prolonged  solitude  becomes  first  irksome,  then  painful, 
and  at  last  intolerable.  The  craving  for  companionship 
may  be  in  abeyance  for  a  short  time,  but  only  for  a  short 
time;  and  the  longer  the  solitude  is  continued,  the  more 
imperious  does  the  craving  for  society  become. 

But  society  can  be  had  only  on  terms.  He  who  asso- 
ciates with  his  fellows  must  conform  with  certain  condi- 
tions, or  his  companionship  will  not  be  permitted.  A 
society  is  an  integrated  whole,  an  aggregate,  and  the  ex- 
istence of  every  aggregate  requires  and  implies  a  limita- 
tion of  the  intrinsic  independent  motion  of  the  constituent 
elements  of  the  aggregate ;  and  vice  versa,  to  diminish  the 
cohesion  of  the  constituent  elements  of  an  aggregate,  it 
is  necessary  to  increase  the  intrinsic  and  independent 
motion  of  its  constituent  elements.  When  a  blacksmith 
desires  to  divide  an  iron  bar,  he  heats  it  until  it  softens, 
and  then  he  finds  the  division  easy;  but  to  heat  a  thing 
is  to  increase  a  motion  of  its  constituent  molecules  or 


THE  NATURE  OF  CRIME  85 

atoms.  When  a  housekeeper  finds  her  butter  smeary  and 
soft,  she  puts  the  pat  upon  ice,  and  thus  hardens  it; 
that  is  to  say,  she  diminishes  the  movement  of  the  mole- 
cules, and  thus  secures  a  more  coherent  aggregate.  What 
is  true  of  these  inorganic  aggregates  is  true  of  every  ag- 
gregate of  every  kind.  If  the  individual  constituent 
members  of  a  flock,  a  herd,  or  a  shoal  move  independ- 
ently of  one  another,  if  they  move  at  different  rates  or  in 
different  directions,  each  at  his  own  will,  the  flock  or 
herd  or  shoal  will  cease  to  exist.  It  will  be  disintegrated. 
Fo*r  the  maintenance  of  the  aggregate,  in  this  case  the 
grex,  a  certain  surrender  of  freedom  of  action  must  be 
made  by  every  constituent  member  of  it.  On  no  other 
terms  can  an  aggregate  persist. 

The  solitary  bee  makes  its  cell  of  wax  in  cylindrical 
or  somewhat  oval  form.  It  has  complete  freedom  of 
action,  and  can  fashion  its  cell  into  any  shape  it  finds 
convenient.  But  the  gregarious  bee,  crowded  on  every 
side  by  its  associates,  has  much  less  liberty  of  action.  If 
it  were  to  make  a  cylindrical  cell,  its  cell  would  encroach 
upon  all  sides  on  the  cells  of  its  fellows,  and  would 
interfere  so  much  with  their  liberty  of  action  as  to  render 
this  action  nugatory.  Hence  its  cell  cannot  be  cylindrical. 
Where  its  activity  meets  that  of  its  fellows,  where  the 
activity  of  its  fellows  meets  its  own,  where  each  cylinder 
would,  if  completed,  encroach  upon  its  fellows  so  much 
as  to  spoil  them  for  their  purpose,  there  the  activity  of 
all  is  checked.  A  compromise  is  effected.  A  bargain  is 
struck.  A  via  media  is  found.  Since  neither  of  two  ad- 
jacent cylinders  may  encroach  upon  the  other,  each  con- 
structor gives  way  to  an  equal  extent  with  the  other,  and 
a  flat  partition  is  built  between  the  two.  Each  bee  so 
limits  the  extent  of  her  own  construction  as  to  leave  her 
neighbor  a  range  of  activity  equal  to  her  own.  The  re- 


86  CRIME  AND  CRIMINALS 

suit  is  an  organized  structure  far  better  adapted  to  the 
purpose  than  if  each  bee  had  pursued  independently  and 
untrammeled  her  own  devices,  and  had  built  an  isolated 
cylindrical  cell.  Space  is  economized;  time,  labor,  and 
material  are  saved;  and  the  resulting  structure  is  stronger, 
more  convenient,  and  better  adapted  to  the  purposes  of 
egg-laying,  rearing  of  brood,  and  storage  of  food.  The 
instance  is  typical,  and  shows,  first,  the  great  advantage 
of  combined  action  in  pursuit  of  a  common  purpose; 
second,  the  necessary  condition  of  combined  action,  viz. 
that  each  individual  must  surrender  some  part  of  his 
freedom  of  action,  must  exercise  self-restraint,  forbear- 
ance, in  the  presence  of  his  associates;  and  third,  that  a 
member  of  a  society  must  be  content  to  work,  not  so 
much  for  his  own  individual  profit  as  for  the  welfare  of 
the  society  to  which  he  belongs,  and  to  reap  his  profit 
in  common  with  the  rest,  as  part  of  the  general  pros- 
perity to  which  he  has  contributed  his  share.  The  first 
condition  of  social  life  is,  in  short,  unselfishness.  The 
condition  presupposed  by  social  life  is  a  voluntary  sur- 
render of  some  freedom  of  action,  some  purely  selfish 
purposes,  and  the  diversion  of  self-regarding  effort  into 
effort  for  the  common  welfare. 

Society  holds  together  by  virtue  of  the  self-control, 
forbearance,  and  unselfishness  of  its  members.  It  exists 
by  the  subordination  in  due  proportion  of  the  self- 
regarding  and  reproductive  instincts  to  the  social  instinct. 
The  man  who  is  marooned  on  a  desert  island,  and  lives 
a  solitary  existence,  may  do  as  he  pleases.  He  may  ap- 
propriate to  his  use  anything  that  he  may  find.  Myrrh 
from  the  forest  or  gold  from  the  mountain,  pearls  from 
the  ocean  or  gems  from  the  mine,  are  all  his  for  the 
mere  labor  of  gathering.  He  may  go  where  he  pleases 
and  do  what  he  pleases.  But  the  same  man  as  a  member 


THE  NATURE  OF  CRIME  87 

of  a  society  finds  his  activity  checked  at  every  turn, 
limited  in  every  direction,  by  the  mere  fact  of  his  mem- 
bership. Like  the  bee  in  making  her  comb,  he  is  sur- 
rounded on  all  sides  by  his  fellows,  whose  activities  tend 
to  encroach  upon  his  as  his  tend  to  encroach  upon  theirs; 
and,  as  in  the  case  of  the  bee,  the  only  possible  modus 
vivendi  is  the  compromise  effected  by  forbearance.  He 
may  no  longer  go  where  he  pleases  if  by  so  doing  he  en- 
croaches on  the  privacy  of  others.  He  may  not  take 
what  he  chooses  if  by  so  doing  he  invades  the  proprietary 
rights  of  his  fellows.  He  may  not  interfere  with  his 
neighbor's  manservant,  nor  with  his  maidservant,  nor 
with  his  ox,  nor  with  his  ass,  nor  with  anything  that  is 
his.  He  may  take  nothing  to  his  own  use  that  is  not 
freely  given,  either  for  nothing,  or  in  return  for  goods, 
money,  or  service  rendered.  And  the  reason  is  that  if 
every  man  in  a  society  pursues  without  restraint  his  own 
self-regarding  desires,  the  society  falls  to  pieces,  is  dis- 
integrated and  destroyed;  and  as  man  is  now  adapted 
only  for  living  in  societies,  the  destruction  of  a  society  in- 
volves the  destruction  of  all  the  individuals  in  it,  unless 
they  form  a  new  society  or  join  some  other  in  the  neigh- 
borhood. The  destruction  of  a  society  always,  in  fact, 
means  the  destruction  of  many  lives,  and  to  that  extent 
the  attenuation  and  diminution  of  the  race. 

Social  conduct  means,  therefore,  primarily  and  before 
anything  else,  forbearance  and  self-restraint,  the  limita- 
tion of  the  self-regarding  activities.  It  means  more  than 
this,  however.  Not  only  must  each  individual  in  a  society 
so  limit  his  activity  that  it  does  not  interfere  with  or 
limit  to  a  greater  extent  the  corresponding  freedom  of 
action  of  others,  but  he  must  be  prepared,  in  case  the 
needs  of  the  society  demands  them,  to  make  still  greater 
sacrifices.  If  he  is  to  preserve  himself,  he  must  be  pre- 


88  CRIME  AND  CRIMINALS 

pared  to  defend  himself  when  attacked.  If  he  is  to 
preserve  his  children,  and  thereby  his  race,  he  must  be 
prepared  to  defend  them,  and  to  sacrifice  his  life,  if  need 
be,  in  their  defense.  And  if  his  society  is  to  be  preserved, 
he  must  be  prepared  to  defend  it  also  when  it  is  attacked, 
and  to  lay  down  his  life,  if  need  be,  in  defending  it. 
Unless  each  citizen  is  prepared  to  sacrifice  his  own  life 
for  the  safety  of  the  society,  the  existence  of  the  society 
is  but  precarious,  and  when  occasion  arises  will  come  to 
an  end.  As  in  the  scheme  of  Nature  the  welfare  and 
even  the  life  of  the  individual  count  for  nothing  in  com- 
parison with  the  preservation  of  the  stock,  so,  in  the  case 
of  social  animals,  the  welfare  and  even  the  life  of  the 
individual  count  for  nothing  in  comparison  with  the  pres- 
ervation of  the  society.  "  The  individual  withers,  but 
the  race  is  more  and  more  "  expresses  but  one-half  of  the 
biological  truth.  It  is  equally  true  and  equally  pertinent 
to  say  that  the  individual  withers  and  the  society  is  more 
and  more.  Thus  the  self-regarding  instincts  and  the 
social  instincts  are  of  necessity  in  frequent  conflict,  and 
it  is  vital  for  the  society,  and  therefore  for  the  race  also, 
that  when  this  conflict  arises,  the  social  activity  should 
conquer  and  prevail.  In  the  frequent  conflict  between 
self-assertion  and  forbearance,  the  touchstone  of  rectitude 
is  not,  "  Which  is  best  for  me?  "  as  the  selfish  man  would 
put  it;  or,  "Which  is  best  for  my  antagonist?"  as  the 
saint  might  put  it;  but,  "  Which  is  best  for  the  society  to 
which  I  belong?  "  And  this  is  the  true  test  of  moral  con- 
duct in  every  emergency.  It  is  virtually  the  same  as 
Kant's  maxim:  "Act  so  that  your  action  may  be  a  law 
for  all."  That  is  to  say,  act  so  that  if  every  one  were 
to  follow  your  example,  the  integrity  and  cohesion  of 
society  would  not  be  impaired. 

There  is  discrepancy,   and  occasional  incompatibility 


THE  NATURE  OF  CRIME  89 

and  conflict,  between  the  social  and  the  racial  instincts 
also,  though  the  conflict  is  less  frequent.  It  is  less  fre- 
quent because  the  society  is  founded  as  the  family,  and 
the  family  is  itself  a  small  society  and  a  stage  in  the 
formation  of  the  larger  society.  Solitary  animals,  as  soon 
as  they  attain  an  age  at  which  they  can  fend  for  them- 
selves, at  which  their  faculties  and  powers  suffice  for 
their  own  preservation,  separate  from  their  parents,  with 
whom  they  have  already  begun  to  compete  for  food  and 
otixer  necessaries  of  life.  In  some  cases,  as  for  instance 
with  the  robin  of  our  gardens,  as  if  realizing  this,  the 
parents  drive  them  away  when  they  reach  this  age.  The 
first  beginnings  of  social  life  are  made  when  the  dispersal 
of  the  offspring  is  delayed;  and  when  it  ceases,  social  life 
is  established.  Society  is  held  together  by  the  bonds  that 
unite  the  family,  for  the  family  also  holds  together  by 
the  mitigation  of  competition,  by  mutual  forbearance,  and 
by  the  help  that  each  affords  to  others  in  the  pursuit  of 
common  ends.  In  the  beginning,  the  family  is  coextensive 
with  the  society.  The  family  is  an  incipient  society.  As, 
with  successive  generations,  the  family  increases  into  the 
tribe,  the  bonds  of  the  family  are  enlarged  and  modified. 
The  families  have  a  certain  distinctness  within  the  tribe, 
but  they  are  held  together  one  with  another  by  the  bonds 
of  kin,  and  the  society  is  founded  upon  kinship.  The 
family  is  the  unit  out  of  which  are  built  up,  first  the  tribe, 
and  then  the  nation;  and  anything  that  interferes  with 
family  life,  or  slackens  its  bond,  is  disintegratory  of  the 
tribe,  and  of  the  nation  also.  Hence  has  arisen  a  set  of 
instinctive  desires  safeguarding  the  integrity  of  the 
family.  Parental  and  filial  affection  not  only  secure  the 
welfare  of  the  offspring,  and  thus  subserve  the  purpose 
of  securing  the  survival  of  the  race,  but  also  at  the  same 
time  assist  in  binding  the  members  of  the  family  together. 


90  CRIME  AND  CRIMINALS 

Sexual  jealousy  tends  to  keep  the  family  intact  and  pure. 
Chastity  and  its  auxiliary,  sexual  modesty,  have  the  same 
effect,  and  at  the  same  time  help  to  keep  down  internal 
strife  within  the  community. 

But  these  racial  and  semi-racial  instincts,  though  in  the 
main  they  strengthen  the  bonds  that  held  the  society 
together,  yet  upon  occasion  are  disintegratory,  and  there- 
fore conflict  with  social  instincts.  Jealousy  leads  to  strife, 
and  strife  is  of  course  disintegratory.  Sexual  love,  the 
ultimate  'foundation  of  society,  may  be  so  directed  as  to 
break  up  the  family,  and  in  this  way  tend  to  disintegrate 
society.  Parental  affection  may  lead  in  various  ways  to 
acts  that  are  anti-social.  It  may  lead  to  acts  that,  favor- 
ing the  children  unduly,  are  dishonest  to  other  members 
of  the  society.  It  may  lead  to  withdrawal  of  the  children 
from  their  social  duties;  it  may  lead,  for  instance,  to  the 
parent  inciting  the  son  to  evade  his  military  service.  It 
may  lead  the  child,  by  overindulgence,  to  regard  with 
indifference  the  rights  and  feelings  of  others.  It  may 
lead  the  parents  themselves  to  shirk  their  social  respon- 
sibilities in  order  to  devote  themselves  more  completely 
to  the  welfare  of  their  children.  The  conflict  between  the 
social  instinct  and  the  racial  instinct  is,  however,  much 
less  intense  and  much  less  frequent  than  the  conflict  be- 
tween the  social  instinct  and  the  self-regarding  instincts; 
and  though  the  preponderance  of  the  racial  instinct  may 
lead  to  acts  that  are  detrimental  to  the  society,  it  does 
so  comparatively  seldom. 

We  find,  therefore,  that  man  possesses  three  funda- 
mental sets  of  instincts,  two  of  which,  the  racial  and  the 
self-regarding  or  self-preservative,  are  primordial,  and 
are  shared  by  him  with  all  other  animals;  and  the  third, 
the  social  instinct,  though  not  primordial,  is  yet  of  great 
antiquity,  and  ranks  on  an  equality  with  the  others.  We 


THE  NATURE  OF  CRIME  91 

find,  moreover,  that  these  three  sets  of  instincts  are  not 
always  in  harmony.  They  are  all  adapted  to  secure  the 
same  end  and  achieve  the  same  purpose,  the  preservation 
and  the  continuation  of  the  race  of  men;  but  they  con- 
tribute to  the  end  in  various  ways,  and  with  different 
degrees  of  directness.  The  racial  instincts  conduce 
directly  to  the  continuation  of  the  race  by  prompting  the 
acts  of  reproduction  tind  to  the  care  and  rearing  of  off- 
spring. The  self-regarding  instincts  conduce  indirectly 
to  the  same  end  by  safeguarding  the  life  of  the  individual 
untTT  the  reproductive  age  is  reached,  and  as  long  as  the 
reproductive  period  lasts.  The  social  instincts  conduce 
to  the  main  end  doubly  indirectly,  by  prompting  to  acts 
that  conduce  to  the  welfare  and  preservation  of  the 
society,  as  a  means  to  the  preservation  of  its  component 
individuals,  which  is  itself  a  means  to  the  continuation  of 
the  race.  The  necessity  of  preserving  the  life  of  the 
individual  complicates  matters  by  its  occasional  incom- 
patibility with  the  main  end  of  life,  the  continuation  of 
the  race.  The  constitution  and  preservation  of  the  soci- 
ety complicate  matters  very  much  more,  since  they  are 
occasionally  incompatible  with  both  the  other  purposes, 
and  are  always  to  some  extent  and  in  some  respects  in- 
congruous with  the  welfare  of  the  individual;  but  the 
preservation  of  the  society  is  upon  balance  and  in  the 
long  run  so  immensely  advantageous,  that  the  incidental 
and  occasional  disadvantages  are  overridden  and 
swamped,  so  that,  in  the  interests  of  the  race,  nothing, 
not  even  the  lives  of  its  component  members,  can  be  per- 
mitted to  interfere  with  social  welfare  and  prosperity. 
Before  the  welfare  of  society  every  other  consideration 
must  give  way,  every  other  mode  of  conduct  must  be 
renounced;  and  it  is  the  unformulated  perception  of  this 
necessity  that  prompts  society  to  put  a  stop  to  every  such 


92  CRIME  AND  CRIMINALS 

mode  of  conduct  on  the  part  of  its  individual  members. 
Thus  we  arrive  at  long  length  at  the  true  nature  of 
crime.  Crime  is  conduct  injurious  to  society,  by  which 
must  be  understood  the  society  to  which  the  criminal 
belongs.  More  specifically,  crime  is  the  preponderance 
of  self-regarding  conduct,  and  occasionally  of  racial  con- 
duct, over  social  conduct;  and  is  possible  because  the 
instinctive  desires  prompting  to  these  several  modes  of 
conduct  are  not  in  harmony.  If  they  were  completely 
harmonized,  there  would  be  no  crime.  Crime  would  be 
absent  from  want  of  motive.  Such  complete  harmoniza- 
tion exists  in  some  societies,  notably  in  those  of  the  social 
insects.  Among  ants,  social  bees,  and  social  wasps,  there 
is  no  crime,  for  in  no  member  of  these  societies  is  there 
any  inclination  to  act  otherwise  than  for  the  welfare  of 
the  society,  or  to  allow  the  self-regarding  activity  to  pre- 
ponderate over  those  activities  that  serve  the  interest  of 
the  society.  No  social  insect,  as  far  as  has  been  ob- 
served, ever  appropriates  to  itself  an  unfair  share  of  the 
common  stock.  No  social  insect  so  comports  itself  as 
to  allow  its  own  activity  to  interfere  with  the  activity  of 
its  fellows.  No  social  insect  betrays  resentment  when  its 
work  is  pulled  to  pieces  by  other  members  of  the  society 
in  order  to  be  reconstructed  in  more  efficient  or  more  con- 
venient form.  No  social  insect  hesitates  for  a  moment  to 
sacrifice  its  life  for  the  common  welfare.  In  these  an- 
imals socialization  is  complete  and  perfect.  There  is  no 
crime  because  there  is  no  inclination  to  crime.  There  is 
no  inclination  to  crime  because,  by  the  operation  of 
natural  selection,  which  determines  the  survival  of  socie- 
ties as  well  as  the  survival  of  individuals,  those  societies 
in  whose  members  the  social  instincts  were  the  stronger 
prevailed  in  competition  over  those  in  whose  members 
these  instincts  were  weaker;  until  at  length  societies  were 


THE  NATURE  OF  CRIME  93 

produced  in  which  complete  preponderance  of  the  social 
instincts  exists. 

In  mankind,  this  preponderance  is  not  yet  attained,  is 
not  yet  universal,  is  perhaps  not  yet  even  general.  When, 
as  continually  happens,  there  is  a  conflict  in  the  mind  of 
any  member  of  a  human  society  between  desire  for  self- 
regarding  action  and  desire  for  social  action,  the  latter 
does  not  always  prevail.  If  human  beings  were  perfectly 
socialized^  there  would  be  no  conflict.  If  a  stage  in  social 
evolution  is  reached  in  which,  although  there  may  be  a 
conflict,  the  desire  for  social  action  is  always  victorious, 
there  will  be  no  crime;  but  as  long  as  the  conflict  takes 
place,  and  its  issue  is  not  a  foregone  conclusion  in  favor 
of  social  conduct,  so  long  there  will  be  a  tendency  in  the 
mind  of  man  to  commit  crime,  and  so  long  crime  will 
occasionally  be  committed. 

But  it  is  vitally  important  for  the  race  as  well  as  for 
the  society  that  crime  should  not  be  committed;  and 
therefore  every  human  society  that  has  preserved  its  ex- 
istence has  devised  such  additions  and  reinforcements  of 
the  social  instincts  as  shall  enable  them  to  prevail  over 
the  self-regarding  instincts,  or  as  shall  stand  instead  of 
the  social  instincts  in  subordinating  those  that  are  self- 
regarding,  and  in  suppressing  and  preventing  conduct  in- 
jurious to  society.  Such  additions  and  reinforcements 
are  of  three  kinds:  first,  custom;  second,  religion;  and 
third,  criminal  law.  That  these  are  socially  and  bio- 
logically very  closely  allied  is  shown  by  their  identical 
origin.  They  are  three  branches  from  one  root.  In 
primitive  societies  they  are  identical,  and  become  distinct 
only  with  progress  in  civilization  or  evolution,  in  which 
differentiation  takes  place  in  these  institutions  as  in  every- 
thing else.  Custom,  religion,  and  criminal  law  are  at 
first  identical,  or,  more  correctly,  they  are  different  and 


94  CRIME  AND  CRIMINALS 

scarcely  distinguishable  aspects  of  an  institution  that  in- 
cludes them  all.  To  violate  a  custom  is  to  incur  the 
wrath  of  God  as  well  as  punishment  by  the  civil  power, 
or,  what  is  then  the  same  thing,  the  collective  force  of 
the  society.  Religious  observances  are  enforced  by  the 
same  sanction,  and  soon  attain  the  status  of  custom,  when 
they  do  not  arise  out  of  customs.  Criminal  law  is  one 
with  both  custom  and  religion.  The  judgments  pro- 
nounced by  the  general  voice,  and  the  punishments  in- 
flicted by  the  collective  hand  of  the  society,  are  directed 
against  violations  of  custom  that  have  religious  sanction, 
and  against  violations  of  religious  observance  that  are 
customary.  Capital  crimes  are  chiefly  those  that  incur 
peculiar  abhorrence  by  their  violations  of  custom,  and 
peculiar  danger  to  the  whole  society  from  the  wrath  of 
-an  offended  God.  It  is  clearly  because  they  are  believed 
to  be  injurious  to  society  that  they  are  punished.  The 
injury  or  danger  may  be  real,  or  imaginary  and  fanciful, 
but  it  is  on  the  ground  that  they  are  injurious  to  society, 
chiefly  by  incurring  the  wrath  of  God,  that  acts  are 
punished.  It  is  the  injury  to  society  that  constitutes 
crime.  The  history  of  all  primitive  societies  corroborates 
these  assertions,  which  are  well  illustrated  by  the  elab- 
orate code  of  punishments  enacted  in  the  Pentateuch. 

As  evolution  of  society  proceeds,  custom,  religion,  and 
law  gradually  separate  and  diverge  from  one  another, 
and  first  custom  and  then  religion  become  less  powerful, 
while  law  appropriates  to  itself  the  power  that  they  lose ; 
but  it  is  worth  while  to  show  here  how  custom  and  reli- 
gion reinforce  or  supplement  the  social  instincts  in  their 
conflict  with  the  self-regarding  instincts. 

In  primitive  societies,  customs  are  reinforced,  when 
necessary,  by  terrible  sanctions;  but  these  sanctions  are 
seldom  called  upon.  The  propensity  to  follow  custom 


THE  NATURE  OF  CRIME  95 

is  innate,  or  is  acquired  at  a  very  early  age,  and  is  a 
cohesive  social  force  of  the  highest  importance.  It  is 
scarcely  correct  to  speak  of  custom  as  reinforcing  social 
instincts,  for  the  innate  tendency  to  follow  custom — that 
is,  to  do  what  has  always  been  done — is  itself  a  social 
instinct  of  great  potency  and  value.  By  prescribing  a 
course  to  be  followed  in  exceptional  circumstances,  cus- 
tom economizes  thought;  but  its  chief  value  is  in  ensur- 
ing that  uniformity  of  action  that  we  have  seen  is  so 
valuable  in  binding  together  the  components  of  a  society. 
If  pome  move  one  way  and  some  another,  if  some  move 
fast  and  others  slow,  the  flock  or  herd  will  be  dispersed 
and  will  no  longer  remain  a  flock  or  herd;  and  if  some 
members  of  a  human  society  do  things  in  one  way  and 
some  in  another,  if  in  exceptional  circumstances  they  know 
not  how  to  act  and  act  diversely  and  confusedly,  disin- 
tegration of  society  will  be  incipient;  and  if  such  action 
is  frequent  and  universal,  the  bonds  of  social  union  will 
be  relaxed,  and  may  be  altogether  destroyed.  Custom 
ensures  uniformity,  and  this  is  a  social  bond,  whatever 
the  nature  of  the  custom.  Many  customs,  such  as  the 
couvade,  are  unreasonable  and  absurd;  but  it  is  better  for 
the  society  that  an  unreasonable  and  absurd  custom 
should  be  followed  than  that  no  custom  should  be  fol- 
lowed. Customs  are  seldom  directly  social-conservative, 
seldom  prescribe  rites  that  are  directly  necessary  for 
the  preservation  of  society;  but  the  following  of  a 
custom,  whatever  it  may  be,  is  always  in  primitive 
societies  advantageous.  Marriage  customs,  for  in- 
stance, vary  very  widely  in  different  societies,  and  it 
makes  no  difference  to  the  survival  of  the  society  whether 
one  marriage  custom  or  another  is  followed;  but  it  is  of 
the  greatest  importance  that  some  marriage  custom 
should  be  followed,  and  that  marriage  should  be  invested 
with  formality  and  impressiveness,  so  that  its  importance, 


96  CRIME  AND  CRIMINALS 

its  binding  character,  the  fact  of  its  performance,  should 
be  impressed  upon  the  members  of  the  society,  registered 
and  remembered  by  them,  and  regarded  by  them  as 
sacred.  When  custom  seizes  upon  a  mode  of  action  that 
is  beneficial  to  society,  as  for  instance  on  faithfulness  to 
the  marriage  vow,  it  becomes  a  valuable  safeguard  to 
society  in  that  respect,  and  of  itself  tends  to  prevent  the 
perpetration  of  one  particular  mode  of  injurious  action; 
and  when  the  reverse  mode  of  action  becomes  customary, 
neither  law  nor  religion  has  much  power  to  reform  it. 
Whenever,  in  the  conflict  between  social  motive  and  self- 
regarding  motive,  custom  ranges  itself  upon  either  side, 
the  other  has  little  prospect  of  prevailing. 

Religion  also  is  a  most  powerful  social  force,  partly  as 
inculcating  under  supernatural  sanctions  those  social  acts 
that  are  opposed  by  self-regarding  motives,  but  even 
more  by  its  inculcation  of  a  general  habit  of  suppressing 
self-regarding  action.  Religions  are  extremely  various  in 
the  beliefs  that  they  inculcate  and  the  observances  they 
demand,  but  they  all  without  exception  agree  in  demand- 
ing self-sacrifice  from  their  votaries.  The  self-sacrifice 
is  often  unreasonable,  absurd,  and  excessive.  It  may 
lead  to  the  waste  of  life  in  trivial  and  useless  perform- 
ance. It  may  lead  to  the  impairment  of  health  and  even 
the  sacrifice  of  life  by  excessive  mortification.  It  may 
lead,  and  very  often  does  lead,  to  much  unnecessary 
misery,  and  to  much  neglect  of  duty;  but  it  always  has 
this  effect,  that  it  renders  the  subordination  and  suppres- 
sion of  self-regarding  action  customary,  habitual,  and 
therefore  easy.  The  man  who  runs  to  excess  in  religious 
observance  is  extremely  apt  to  disregard  the  welfare  of 
his  fellows,  and  thus  to  become  unsocial  and  even  anti- 
social; but  he  does  show  by  his  example  that  it  is  possible 
to  suppress  the  self-regarding  motives,  to  override  them, 


THE  NATURE  OF  CRIiyiE  97 

and  to  subordinate  them  to  other  motives;  and  if  this  can 
be  done  for  one  antagonistic  set  of  motives,  it  can  be 
done  for  another.  The  practice  of  the  religious  ascetic 
deprives  the  crapulent,  selfish  man  of  the  excuse  that 
the  self-denial  required  of  him  for  social  reasons  is  be- 
yond the  power  of  human  nature  to  exercise.  The  re- 
ligious ascetic  is  a  standing  proof  to  the  contrary;  and 
the  constant  inculcation  of  self-sacrifice  of  some  kind  and 
in  some  degree  by  every  form  of  religion  familiarizes 
its  votaries  with  the  practice  of  self-sacrifice,  breeds  in 
them  a  habit,  and  thus  renders  easier  the  sacrifice  of 
self-regarding  action  for  social  reasons,  and  the  subord- 
ination of  self-regarding  to  social  motives. 

It  is  necessary  for  the  preservation  and  for  the  very 
existence  of  society  that  action  injurious  to  society  should 
be  suppressed;  and  since  the  social  instincts  are  generally 
and  in  most  men  inferior  in  potency  to  the  self-regarding 
instincts,  and  since  the  reinforcement  that  the  social  in- 
stincts receive  from  custom  and  from  religion  is  not 
always  sufficient  to  secure  the  preponderance  of  the  social 
motives,  society  borrows  for  its  own  behoof  a  weapon 
from  the  armory  of  the  selfish  motives.  It  supplies,  by 
the  institution  of  criminal  law,  a  self-regarding  motive 
for  suppressing,  or  at  least  for  forgoing,  anti-social 
action.  It  impresses  selfishness  into  the  service  of  the 
society.  It  says  to  him  who  would  better  himself  by  in- 
juring society,  "  If  you  do  this,  you  shall  be  not  better  off, 
but  worse  off,"  and  thus  proposes  to  deprive  him  of  his 
motive  for  anti-social  action.  It  is  clear  that  if  this  could 
be  carried  out  in  practice,  crime  would  cease.  If  the 
would-be  criminal  could  be-  convinced  and  know  that  he 
would  be  not  better  off  but  worse  off  for  his  criminal 
action,  the  self-regarding  motive  for  crime  would  be  abol- 
ished, and  crime  would  not  be  committed.  Why  the 


98  CRIME  AND  CRIMINALS 

criminal  law  so  often  fails  to  produce  this  effect  will  be 
subsequently  considered.  All  that  need  be  now  insisted 
on  is  that  this  is  the  rational  basis  of  the  criminal  law. 
I  do  not  say  that  it  was  out  of  any  such  consideration  as 
this  that  the  criminal  law  took  its  origin.  There  is  no 
doubt  that  it  arose  in  a  very  different  way,  and  from  very 
different  motives.  I  say  only  that  this  is  its  rational 
basis,  and  that  if  it  is  to  be  effectual,  it  should  be  guided 
by  this  principle.  This,  I  think,  can  scarcely  be  gainsaid. 
It  will  be  seen  that  the  definition  here  given  of  crime, 
as  consisting  of  acts  that  are  injurious  to  society,  is  very 
different  from  the  narrow  legal  definition  which  regards 
it  as  consisting  of  offenses  triable  by  indictment  in  courts 
of  superior  jurisdiction,  and  from  the  wider  legal  defi- 
nition which  regards  it  as  consisting  of  acts  and  omis- 
sions forbidden  by  law.  In  jurisprudence,  theft  is  theft, 
whether  it  is  so  serious  as  to  be  triable  at  assizes  or 
quarter  sessions,  or  whether  it  is  so  trivial  that  it  may  be 
tried  at  a  court  of  inferior  jurisdiction ;  and  in  either  case 
is  a  crime,  though  not  a  crime  of  equal  enormity.  And 
it  is  evident  that  an  act  may  be  injurious  to  society  and 
yet  may  not  be  forbidden  by  law ;  and  on  the  other  hand 
an  act  that  is  not  injurious  may  be  forbidden ;  and  in  fact 
there  are  extravagances  of  both  kinds.  Jurisprudence, 
the  science  of  law,  takes  cognizance  not  of  what  the  law 
is,  but  of  what  the  law  ought  to  be,  having  regard  to  the 
principles  on  which  law  is  or  ought  to  be  founded;  and 
in  the  further  discussion  of  crime,  the  view  that  I  shall 
take  is  that  crime  consists  of  those  acts  that  are  injur- 
ious to  society.  We  are  at  once  confronted  with  the  ques- 
tion, What  are  these  acts?  and  since  they  are  manifestly 
of  various  kinds,  this  leads  us  to  the  problem  of  the 
classification  of  crimes. 


CHAPTER  IV 
KINDS  OF  CRIME 

PUBLIC  CRIMES 

WE  have  seen  that  crime  consists  of  acts  injurious  to  the 
so^ekty  to  which  the  criminal  belongs,  and  that  it  is  due 
to  the  dominance  of  non-social  action  over  social  action. 
We  have  seen  also  that  man  is  actuated  by  three  primary 
sets  of  instincts,  or  motives  to  action:  the  racial,  the 
selfish,  and  the  social.  We  have  seen  that  of  these  the 
selfish  and  the  racial  are  in  some  respects  necessarily  an- 
tagonistic, and  the  selfish  and  social  are  necessarily  antag- 
onistic. It  is  natural  to  inquire  whether  the  racial  and 
the  social  may  not  also  be  in  antagonism,  in  which  case 
the  preponderance  of  the  racial  would  lead  to  crime, 
and  a  primary  division  of  crimes  would  come  into  view, 
according  as  the  crime  was  prompted  by  a  self-regarding 
or  a  racial  motive. 

It  may  be  said  at  once  that  some  acts  prompted  by 
motives  of  the  racial  class  are  anti-social,  and  therefore 
criminal.  Murder  from  the  motive  of  jealousy  will  im- 
mediately occur  to  the  reader.  But  there  is  not  between 
racial  and  social  instincts  that  necessary  and  inevitable 
antagonism  that  exists  between  the  self-regarding  or  self- 
preservative  and  the  social  instincts.  In  the  normal  and 
general  course,  the  racial  instincts  are  not  only  com- 
patible with  the  social,  but  are  harmonious  with  them  and 
mutually  reinforcing,  except  as  far  as  acts  of  the  racial 
class  tend  to  diminish,  as  they  necessarily  do  for  the 

99 


ioo  CRIME  AND  CRIMINALS 

time  being,  the  life-worthiness  of  the  lover  or  parent,  and 
so  to  cause  some  slight  and  temporary  and  indirect  injury 
to  society.  Hence,  although  a  good  many  crimes  are 
perpetrated  from  motives  belonging  to  the  racial  class, 
and  such  crimes  will  form  a  separate  class  in  their  place, 
they  do  not  form  a  primary  class,  of  equal  rank  with  the 
self-regarding;  for  in  most  crimes  committed  from  a 
racial  motive  the  motive  is  perverted,  and  is  as  antago- 
nistic to  the  racial  principle  as  to  the  social  principle.  In 
others,  the  crime,  though  occurring  in  the  racial  depart- 
ment of  conduct,  is  prompted  by  a  purely  self-regarding 
motive.  A  primary  division  of  crimes  into  those  that  are 
purely  self-regarding  and  those  into  which  a  racial  pur- 
pose enters  would,  therefore,  be  unsatisfactory.  It 
would  lead  to  cross-classification  and  confusion. 

Every  attempt  that  has  been  made  hitherto  to  classify 
crimes  has  ended  in  cross-classification  and  confusion,  the 
reason  being,  of  course,  that  the  principles  and  rules  of 
classification  have  been  utterly  disregarded,  and  the 
things  to  be  classified  have  been  thrown  together  and 
separated  anyhow.  It  is  not  only  that  the  characters 
chosen  as  a  basis  of  classification  have  been  superficial 
and  of  little  importance.  A  classification  by  unimportant 
characters  may  be  quite  as  valid  and  correct,  as  a  classi- 
fication, as  one  that  is  founded  on  the  most  vitally  im- 
portant similarities  and  differences.  It  would  not  be  as 
useful,  but  it  might  be  quite  as  scientific,  in  one  sense  of 
that  much-abused  word;  but  the  fault  that  vitiates  all 
the  classifications  of  crime  that  have  been  proposed 
hitherto,  as  well  as  all  classifications  of  kinds  of  madness 
and  very  many  other  things,  is  that  no  single  principle  is 
adhered  to  in  making  each  division;  and  a  classification 
made  in  this  manner  must  necessarily  be  a  failure. 

The  official   classification  constructed  by  the  Home 


KINDS  OF  CRIME  101 

Office,  and  imposed  upon  the  police  and  prison  officials 
of  the  realm,  has  all  the  faults  that  a  classification  can 
have.  It  divides  crimes  into  six  classes,  each  of  which 
includes  the  most  incongruous  and  dissimilar  crimes,  and 
contains  some  crimes  much  more  closely  akin  to  some  of 
the  crimes  of  other  classes  than  to  some  other  crimes  in 
the  same  class.  Moreover,  it  would  be  easy,  and  indeed 
would  be  logically  necessary,  to  put  the  same  crime  in 
more  than  one  class.  Some  crimes  are  omitted  altogether 
from  the  classification,  and  others  are  included  that  ought 
npt-  to  be  considered  crimes  at  all.  These  are  all  the 
faults  that  a  classification  can  have. 

The  primary  classes  of  the  official  classification  are  as 
follows : — 

I.  Offenses  against  the  person. 

II.  Offenses  against  property  with  violence. 

III.  Offenses  against  property  without  violence. 

IV.  Malicious  injuries  to  property. 

V.    Forgery  and  offenses  against  currency. 
VI.    Other  offenses. 

The  last  class  alone  is  enough  to  condemn  the  classi- 
fication, and  to  show  that  it  has  not  been  thought  out 
and  is  governed  by  no  principle;  and  the  most  casual  in- 
spection shows  that  the  classes  are  not  mutually  exclusive. 
Offenses  against  property  with  violence  include  robbery, 
which  surely  is  an  offense  against  the  person.  Offenses 
against  property  without  violence  do  not  include  forgery, 
which  is  in  most  cases  an  offense  against  property  with- 
out violence.  Malicious  injury  to  property  is  not  in- 
cluded in  offenses  against  property,  nor  are  offenses 
against  the  currency.  If  we  note  the  practical  effect  of 
the  classification,  we  find  it  much  as  might  have  been 
expected.  Destroying  railways  is  in  one  class,  and  en- 


102  CRIME  AND  CRIMINALS 

dangering  railway  passengers  is  in  another.  Malicious 
wounding  and  murder  are  in  one  class,  and  malicious  use 
of  explosives  in  another.  Destroying  ships  is  in  one  class, 
and  endangering  life  at  sea  is  in  another.  Offenses  in 
bankruptcy  are  in  one  class,  and  forgery,  which  is  often 
employed  in  offenses  in  bankruptcy,  is  in  another.  For- 
gery is  in  one  class  and  falsifying  accounts  in  another; 
and  so  on.  If  we  look  to  the  collocations,  we  find  them 
still  stranger  than  the  separations.  Murder,  bigamy, 
and  child-stealing  are  all  in  one  class;  forgery  and  mak- 
ing counterfeit  coin  are  in  one  class;  larceny  of  horses 
and  offenses  in  bankruptcy  are  in  one  class;  high  treason, 
libel,  perjury,  poaching,  piracy,  and  habitual  drunken- 
ness are  all  in  the  same  class.  Finally,  certain  acts  that 
are  criminal  in  their  nature,  as  being  injurious  to  society, 
such  as  filibustering,  breach  of  contract,  stealing  the  use 
of  a  thing,  and  waste  of  the  national  resources,  are  not 
included  in  the  classification. 

A  very  cursory  examination  of  this  official  classifica- 
tion of  crimes  reveals  the  reasons  of  its  failure.  It  vio- 
lates all  the  principles  on  which  a  classification  should 
be  constructed.  The  first  of  these  principles  is  the  de- 
limitation of  the  things  that  are  to  be  included  in  the 
classification,  the  formulation  of  a  definition  which  shall 
include  everything  that  ought  to  be  included,  and  shall 
exclude  all  that  ought  not  to  be  included.  Crime  is,  in 
the  legal  sense,  that  which  is  forbidden  by  law,  and  in  this 
sense  crimes  are  sufficiently  defined  to  be  classified;  but  we 
are  here  concerned,  not  with  law,  but  with  jurisprudence, 
and  in  the  contemplation  of  jurisprudence  crime  is  that, 
not  which  is,  but  which  ought  to  be  forbidden  by  law. 

The  next  principle  to  be  observed  in  making  a  classi- 
fication is  to  settle  what  purpose  the  classification  is  to 
serve.  That  which  is  a  good  and  valid  classification  for 


KINDS  OF  CRIME  103 

one  purpose  may  be  a  bad  and  invalid  classification  for 
another.  A  classification  of  men  according  to  their  in- 
comes may  be  a  very  good  classification  for  the  purpose 
of  the  Chancellor  of  the  Exchequer  and  the  assessor  of 
taxes,  but  it  is  not  a  good  classification  for  the  anthro- 
pologist; nor  is  a  classification  of  them  according  to  the 
shape  of  their  heads,  good  though  it  may  be  for  the 
anthropologist,  a  good  classification  for  the  political 
economist.  Every  classification  must  be  made  on  some 
principle  adapted  to  the  purpose  of  the  classification. 
Wftat,  then,  is  the  purpose  for  which  a  classification  of 
crimes  is  desired?  Manifestly  the  purposes  are  mani- 
fold. The  police  desire  a  classification  of  crimes  for 
one  purpose,  the  courts  of  law  for  another,  and  the 
prison  officials  for  a  third;  and  none  of  these  is  the  same 
as  the  purpose  for  which  the  citizen,  the  jurisprudent, 
or  the  legislature  desires  a  classification.  What  purpose 
is  aimed  at  by  the  official  classification  of  crimes  I  do 
not  know.  It  is  not  explained  in  any  official  publication, 
and  is  certainly  not  apparent  on  the  face  of  the  classifica- 
itself;  and  whatever  the  purpose  may  be,  we  may  be 
quite  sure  that  such  a  classification  will  not  achieve  it. 

The  third  cardinal  principle  of  classification  is  that  at 
each  step  in  the  process  the  division  must  be  made  on  one 
principle  and  no  more.  It  must  be  made  by  the  presence 
or  absence  of  only  one  quality,  or  by  the  grades,  degrees, 
or  steps  of  the  quality.  This  principle  is  repeatedly  vio- 
lated in  the  official  classification.  The  first  class  is  di- 
vided from  the  rest  by  the  object — the  person — against 
which  the  crime  is  directed.  The  second  and  third 
classes  are  divided  by  two  principles  simultaneously,  viz. 
the  object — property — against  which  the  crime  is 
directed,  and  the  presence  or  absence  of  an  accompani- 
ment of  violence.  In  dividing  off  the  fourth  class  a  new 


104  CRIME  AND  CRIMINALS 

principle  is  introduced,  viz.  the  mental  attitude  of  the 
criminal.  The  crimes  of  this  class  are  divided  from 
other  crimes  by  the  malicious  intention  of  the  perpetra- 
tor. The  fifth  class  consists  manifestly  of  two  distinct 
classes  which  have  scarcely  anything  in  common,  and  the 
principle  on  which  the  first  is  divided  from  the  rest  is 
the  means  employed  in  committing  the  crimes.  Lastly, 
the  sixth  class  is  an  omnium  gatherum,  in  the  construc- 
tion of  which  all  principle  is  frankly  abandoned.  It 
would  tax  the  ingenuity  of  the  most  perverse  to  frame  a 
worse  classification,  or  one  as  bad. 

Dr.  Goring's  classification  is  almost  as  faulty.  He 
also  divides  crimes  into  six  classes,  which  are  not,  how- 
ever, the  same  as  those  of  the  official  classification.  They 
are  as  follows: — 

I.  Malicious  damage  to  property. 

II.  Stealing  and  burglary. 

III.  Sexual  offenses. 

IV.  Violence  to  the  person. 
V.  Coining. 

VI.    Forgery  and  fraud. 

Dr.  Goring's  delimitation  of  crimes  is  different  from 
that  of  the  official  classification.  The  latter  includes 
offenses  of  every  description;  the  former  includes  only 
those  that  are  triable  in  courts  of  superior  jurisdiction. 
It  is  manifest  on  a  moment's  consideration  that  many 
even  of  these  have  no  place  in  Dr.  Goring's  classification. 
There  is  no  place  in  it  for  intimidation,  threats,  or  as- 
saults without  violence;  for  housebreaking  or  extortion; 
for  embezzlement,  receiving  stolen  goods,  or  offenses  in 
bankruptcy;  for  treason,  bribery,  perjury,  libel,  and 
many  other  offenses.  These  omissions,  however,  and 


KINDS  OF  CRIME  105 

the  many  principles  employed  in  the  division,  do  not 
much  vitiate  the  arrangement,  for  it  is  not  put  forward, 
as  the  official  scheme  is,  as  an  exhaustive  and  complete 
classification.  Dr.  Goring's  purpose  is  to  show  that 
certain  rules  obtain  with  respect  to  certain  large  classes 
of  crime ;  and  his  scheme  is  rather  a  list  of  some  of  the 
largest  classes  than  a  formal  classification.  It  has  the 
merit  that  it  serves  his  purpose. 

The  legal  definition  of  a  crime,  or  let  us  say,  of  an 
ofEnse,  is  an  act  that  is  forbidden  by  law.  The  juris- 
prudent's definition  of  a  crime  is  an  act  that  because  it 
is  injurious  to  society,  ought  to  be  forbidden  by  law; 
and  it  is  in  this  sense  that  I  shall  speak  of  crimes,  and 
endeavor  to  classify  them.  The  purpose  of  a  classifica- 
tion is,  in  the  most  general  sense,  to  organize  our  know- 
ledge, to  enable  us  to  think  together  of  those  things  that 
are  alike,  to  think  separately  of  those  things  that  are  un- 
like, to  reduce  our  knowledge  and  our  process  of  thinking 
to  order,  so  that  knowledge  may  be  at  hand  when  we  want 
it,  and  so  that  thinking  about  it  may  be  possible,  and 
perchance  profitable.  Without  classification  of  the  mate- 
rial of  thought,  of  the  objects  of  which  we  think,  these 
purposes  cannot  be  attained.  In  the  classification  of 
crimes,  as  in  all  classifications,  we  have  these  general 
purposes  in  view,  and  in  classifying  crimes  we  have  cer- 
tain special  purposes  also.  It  is  of  importance  to  the 
State,  to  the  legislature,  the  police,  and  to  the  citizens 
generally,  to  know  approximately  how  many  crimes  are 
committed  annually;  but  a  mere  sum  total  of  all  offenses 
lumped  together  is  of  very  little  value  for  any  purpose. 
It  gives  us  no  indication  as  to  whether  the  offenses  are 
grave,  or  merely  nominal;  signify  deep  moral  depravity, 
or  mere  forgetfulness,  or  perhaps  even  conscientious 


106  CRIME  AND  CRIMINALS 

scruples;  mean  that  society  is  seriously  assailed,  or  may 
rest  in  security;  are  a  menace  to  public  order,  to  life, 
to  property,  or  to  some  other  principles  that  we  hold 
dear;  are  increasing  or  diminishing  in  number,  and  if 
so  in  what  directions  they  are  increasing  or  diminishing; 
and  so  forth.  The  classification  that  will  best  fulfil  one 
of  these  purposes  is  not  necessarily  the  best  to  fulfil 
others;  and  it  may  be  that  in  order  to  serve  them  to  the 
greatest  advantage,  different  classifications  would  be  re- 
quired; but  without  going  so  deeply  as  this  into  the 
matter,  it  is  possible  to  formulate  a  single  classification 
that  will  serve  one  or  more  of  the  purposes  completely, 
and  the  others  sufficiently  for  such  a  general  survey  as 
is  contemplated  here. 

Manifestly,  however,  if  we  bear  these  purposes  in 
mind,  we  have  several  different  principles  on  which 
crimes  may  be  divided,  and  we  must  decide  which  of 
these  principles  we  must  choose  for  our  primary  division. 
The  others  may,  if  necessary,  be  utilized  for  dividing  the 
primary  classes  into  classes  of  the  second  rank. 
•  It  is  open  to  us,  if  we  please,  to  classify  crimes,  as  the 
official  classification  purports  to  do,  according  to  the 
nature  of  the  injury  inflicted  by  the  criminal  act;  that  is, 
according  as  the  act  is  injurious  to  the  person,  or  to 
property,  or  is  a  misappropriation  of  property,  or  is 
hurtful  to  the  feelings,  or  is  an  invasion  of  chastity,  or 
is  a  trespass  upon  an  exclusive  right,  and  so  forth.  The 
defects  of  such  a  principle  as  a  primary  mode  of  division 
are  manifest,  and  some  of  them  have  already  been 
pointed  out.  A  homicidal  act  is  an  offense  against  the 
person,  a  violation  of  chastity  is  an  offense  against  the 
person,  and  for  this  reason  the  two  are  included  together 
in  the  first  class  of  the  official  classification;  but  the 
differences  between  them  are  so  wide  and  so  numerous 


KINDS  OF  CRIME  107 

that  it  is  felt  to  be  anomalous  to  class  them  together.  A 
violent  assault  is  an  offense  against  the  person;  but  rob- 
bery is  a  mixed  offense:  it  is  both  injury  to  the  person 
and  misappropriation  of  property.  The  official  scheme 
calls  it  an  offense  against  property  alone,  but  it  is  cer- 
tainly more  than  this,  and  the  victim  might  well  consider 
his  broken  head  a  greater  injury  than  the  loss  of  his 
purse  or  his  watch.  Injury  to  property  and  misappro- 
priation of  property  are  both  in  some  sense  offenses 
against  property;  but  when  a  burglar  steals  an  ancient 
apri  valuable  silver  cup  and  melts  it  down,  under  which 
head  are  we  to  class  the  crime?  Or  under  which  head 
are  we  to  class  the  breaking  off  and  carrying  away  of 
the  pales  of  a  fence? 

In  English  law  there  is  but  one  crime  of  murder,  but 
if  we  wish  to  get  at  the  springs  and  sources  of  crime,  to 
study  it  with  a  view  to  its  prevention,  or  with  a  view  to 
awarding  to  it  its  proper  punishment,  there  are  many 
kinds  of  murder,  distinguished  by  the  motive  from  which 
it  may  be  committed.  Murder  may  be  committed  from 
any  one  of  many  motives:  for  gain,  for  revenge,  for  lust; 
to  escape  from  an  unhappy  marriage;  in  English  law, 
unintentionally,  or  in  the  course  of  committing  some 
other  felony;  or  from  some  other  motive;  and  although 
it  may  possibly  be  expedient  for  the  purpose  of  ad- 
ministering justice  to  lump  all  these  different  crimes 
together  and  call  them  all  murder,  yet  for  the  purpose 
of  understanding  the  causes  of  crime  such  a  classifica- 
tion would  be  confusing  and  very  inadequate.  The  man 
who  would  commit  murder  from  revenge  or  malice  might 
be  as  far  from  committing  murder  for  gain  as  the  most 
thoroughly  moral  and  law-abiding  citizen. 

Yet  if  we  take  motive  for  the  primary  principle  of 
division,  we  may  fall  into  anomalies  equally  grave.  We 


io8  CRIME  AND  CRIMINALS 

shall  then  divide  murders  into  several  natural  groups,  it 
is  true;  but  we  shall  bring  together  in  the  same  class 
larceny  and  piracy,  coining  and  poaching,  forgery  and 
burglary,  picking  pockets  and  offenses  against  the  Truck 
Acts,  bribery  and  driving  a  lame  horse ;  for  all  of  these 
are,  or  may  be,  committed  for  gain.  Moreover,  as  a 
practical  measure,  this  principle  is  subject  to  the  very 
important  defect  that  the  motive  of  a  crime  is  notoriously 
difficult  to  determine.  Crime  of  the  very  same  outward 
nature  may  be  committed  from  half  a  dozen  or  more 
different  motives,  and  we  may  not  be  able  to  do  more 
than  conjecture  which  of  these  motives  was  in  fact 
operative.  As  a  primary  principle  of  division,  the  mo- 
tive on  which  the  crime  was  committed  is  scarcely  a  prac- 
ticable differentia. 

One  of  the  most  important  aspects  of  crime  is  the 
degree  of  turpitude  that  it  evinces.  It  is  this  that  mainly 
determines  the  reprobation  with  which  we  regard  the 
offense,  and  the  punishment  that  we  award  to  it.  The 
turpitude  of  the  offense  is  the  basis  of  the  official  classi- 
fication into  offenses  triable  in  courts  of  summary  juris- 
diction and  offenses  triable  in  the  superior  courts  of 
quarter  sessions  and  assizes.  But  turpitude  is  an  un- 
satisfactory basis  for  classification,  for  it  is  a  matter  of 
degree,  admitting  of  no  sharp  distinctions,  difficult  to 
assess,  assessed  very  differently  by  different  persons  and 
at  different  times.  There  has  recently  been  an  attempt 
made  to  lessen  the  turpitude  of  infanticide,  and  to  regard 
it  as  a  mere  peccadillo,  though  it  is  officially  classed 
among  the  greatest  crimes  known  to  the  law.  If  we 
proceed  on  this  principle,  we  must  class  together  crimes 
as  dissimilar  as  poaching  and  betting,  assault  and  setting 
fire  to  a  common,  blackmail  and  attempting  to  wreck  a 
train,  bigamy  and  riot,  and  other  incongruous  couples. 


KINDS  OF  CRIME  109 

We  shall  separate  different  examples  of  the  same  offense 
committed  from  the  same  motive,  according  to  the 
amount  of  temptation  under  which  they  were  committed 
— a  sound  philosophical  principle,  no  doubt,  but  one  very 
difficult  to  apply  in  practice.  Lastly,  we  must  form  a 
large  and  very  miscellaneous  class  of  offenses  that  imply 
no  moral  turpitude  at  all,  such  as  allowing  a  chimney  to 
catch  fire,  or  forgetting  to  light  a  lamp  or  to  screen  its 
light,  as  the  case  may  be.  Clearly,  as  a  practical  meas- 
ure, classifications  by  degrees  of  turpitude  will  not  do. 

jEh-  we  might  base  our  classification  on  the  differences 
between  the  objects  that  crimes  are  intended  to  benefit. 
On  this  plan,  crimes  of  one  class  are  committed  to  benefit 
the  criminal  alone;  others  are  intended  to  benefit  him- 
self and  his  family  alone;  others  to  benefit  some  other 
person,  or  class  of  persons,  or  the  State  at  large;  for 
offenses  may  be  committed  with  any  of  these  objects. 
It  is  clear  without  giving  instances  that  the  application 
of  this  principle  would  result  in  agglomerations  of 
crimes  that  it  can  scarcely  be  useful  to  think  of  together, 
and  in  constituting  classes  in  which  the  same  offense 
would  crop  up  again  and  again  in  different  connections. 

Lastly,  we  may  take — as  the  official  classification  pur- 
ports to  take — as  the  basis  of  the  classification  the  object 
directly  injured  by  the  offense,  and  divide  crimes  into 
offenses  against  the  State  as  a  whole,  offenses  against 
individuals,  offenses  against  the  institution  of  marriage, 
against  chastity,  against  religion,  and  so  forth. 

From  this  examination  of  the  various  qualities  that 
crimes  present,  it  appears  that  each  of  them  is  important, 
and  must  be  taken  into  consideration  to  some  extent,  at 
some  stage  in  the  classification,  or  the  arrangement  will 
not  be  wholly  satisfactory.  The  difficulty  is  to  decide  in 
what  order  to  take  them;  on  what  principle  to  make  the 


i  io  CRIME  AND  CRIMINALS 

primary  division,  and  in  what  order  of  precedence  they 
shall  be  taken  in  constituting  the  subsequent  minor 
groups. 

After  very  careful  consideration,  I  suggest  the  follow- 
ing classification  as  that  which,  while  conforming  with 
the  recognized  rules  of  classifying,  is  free  from  cross- 
classification  and  confusion,  keeps  all  the  classes  and  sub- 
classes distinct  from  one  another;  and  thus,  being  a  good 
and  valid  classification,  at  the  same  time  satisfactorily 
fulfils  the  purposes  for  which  a  classification  is  required. 

Every  crime  is  an  offense  against  society.  It  is  a  crime 
because  it  is  directly  or  indirectly  injurious  to  society; 
because,  if  it  were  permitted  and  were  to  become  general, 
society  would  be  disintegrated;  and  therefore  society  for 
its  own  protection  must  prevent  or  punish  it,  so  that  it 
may  not  become  general. 

So  regarded,  crimes  may  be  divided  primarily  into 
those  that  are  aimed  against  the  very  principle  of  society, 
that  tend  to  injure,  not  only  this  society  or  that,  but 
several  societies  in  common,  and  therefore  which  it  is 
the  common  interest  of  all  societies  to  suppress,  and 
against  which  all  or  several  civilized  societies  take  com- 
mon action;  and,  on  the  other  hand,  into  those  that 
injure  primarily  but  a  single  State,  and  are  dealt  with 
by  the  single  State  concerned,  acting  within  its  own  juris- 
diction. Thus  we  make  the  primary  division  of  crime 
into  international  and  national. 

International  offenses  are  few  in  number.  They  in- 
clude piracy,  filibustering,  which  is  piracy  on  land,  or 
general  brigandage,  and  the  crimes  of  the  anarchist  and 
the  nihilist,  which  are  aimed  at  destroying  the  very 
fabric  of  society  wherever  it  exists.  To  these  may  be 
added  the  slave  trade,  which  is  probably  incompatible 
with  society  as  it  now  exists  in  highly  civilized  communi- 


KINDS  OF  CRIME  in 

ties,  and  which  at  any  rate  several  nations  are  combined 
to  put  an  end  to.  Perpetrators  of  these  crimes  are  the 
enemies,  not  only  of  this  or  that  individual  whom  they 
injure,  not  only  of  this  or  that  State  whose  laws  they 
transgress,  but  of  every  organized  and  civilized  society. 
They  are  hostes  humani  generis,  enemies  of  humanity 
and  civilization  at  large,  since  their  crimes  strike  directly 
at  the  social  principle  on  which  civilization  and  humanity 
itself  are  founded,  and  without  which  mankind  would 
relapse  into  savagery,  and  probably  die  out  altogether. 
A^criminals  of  this  class  are  the  common  foes  of  all 
nations,  all  nations  are  interested  in  exterminating  them. 

National  crimes  consist  of  those  acts  that  are  injurious 
to  individual  nations  severally.  If  permitted,  and  if 
they  become  general,  they  would  destroy  the  fabric  of 
the  society  in  which  they  are  perpetrated;  but  their  in- 
jurious effect  is  limited  to  this  society,  and  does  not 
extend  to  others,  which  may  even  be  benefited  by  them. 
They  are  divisible  into  two  kinds,  according  as  they 
strike  primarily  at  the  State  itself,  whether  as  a  whole, 
or  through  its  officers,  or  by  injuring  its  institutions,  or  by 
diminishing  its  authority  and  credit.  Or  according  as 
they  injure  the  society  indirectly  by  injuring  primarily 
one  or  more  of  its  component  individuals.  Many  crimes 
of  the  first  class  at  the  same  time  inflict,  or  are  apt  to 
inflict,  injury  on  individual  members  of  the  society.  But 
it  is  not  because  of  the  injury  they  inflict  upon  individual 
persons  that  they  are  prohibited  and  punished;  it  is  be- 
cause, unchecked,  they  would  produce  general,  or  at  least 
widespread,  injury  to  the  fabric  of  the  State,  and  there- 
fore it  is  that  they  are  prosecuted  by  public  officials  in 
the  name  of  the  State. 

National  crimes  of  the  second  class  injure  society,  not 
in  the  gross,  but  in  detail,  by  attacking  its  individual 


ii2  CRIME  AND  CRIMINALS 

members,  and  injuring  them  in  person,  or  property,  or 
feelings.  These  may  be  called  private  crimes,  to  dis- 
tinguish them  from  those  of  the  previous  class,  which 
we  may  call  public  crimes.  The  distinction  is  clear. 
Crimes  of  both  classes  injure  both  the  State  as  a  whole 
and  individual  persons  that  are  members  of  the  State; 
but  public  crimes  injure  the  State  directly  and  are  pun- 
ished for  the  direct  injury  that  they  inflict  upon  the 
State,  and  not  for  the  special  injury  that  they  inflict  at 
the  same  time  upon  this  or  that  individual  citizen;  while 
private  crimes  injure  the  individual  citizen  directly,  and 
are  punished  primarily  for  the  injury  they  inflict  upon 
him,  and  only  secondarily  for  the  injury  that  they  inflict 
through  him  upon  the  State.  As  the  type  of  public 
crimes,  we  may  instance  assault  upon  the  person  of  the 
Sovereign,  which  is  punished,  not  for  the  special  injury 
•it  may  inflict  upon  him  as  a  man,  but  for  the  direct 
injury  to  the  State  inflicted  by  imperiling  the  safety  of 
flhe  chief  representative  of  the  State,  and  by  the  con- 
tempt of  his  crown  and  his  dignity.  In  striking  at  him, 
the  criminal  strikes  at  the  State  as  a  whole,  at  its  fabric 
and  constitution.  If  the  sovereign  is  not  safe,  the  State 
is  in  peril.  As  the  type  of  private  crimes  we  may  take 
a  similar  assault  upon  a  private  person  in  his  private 
capacity.  In  this  case,  the  direct  and  primary  injury  is 
limited  to  the  individual  person  who  is  assaulted,  and  the 
law  recognizes  this  limitation  by  leaving  to  him  the  task 
of  prosecuting  the  criminal;  but  the  crime  inflicts  an 
indirect  and  secondary  injury  upon  society  as  a  whole. 
It  tends  to  loosen  the  bonds  of  society;  and  if  such  acts 
were  permitted  to  become  general,  society  would  be  de- 
graded in  civilization  and  would  relapse  into  barbarism. 
This  secondary  effect  is  recognized  by  the  State,  which 
accordingly  provides  the  machinery  by  which  the  offender 


KINDS  OF  CRIME  113 

may  be  punished,  though  it  leaves  to  the  injured  person 
the  task  of  setting  the  machinery  in  motion. 

The  two  kinds  of  injury,  or  rather  the  two  objects 
injured,  are,  or  were,  explicitly  set  forth  in  the  form  of 
the  indictment.  The  prisoner  indicted  of  a  grave  private 
crime,  such  as  murder,  was  indicted  not  only  for  murder- 
ing his  victim,  but  also  for  murdering  him  "  against  the 
peace  of  our  Lord  the  King."  The  words  introduce 
into  the  indictment  a  formal  recognition  of  the  public 
element  in  the  private  crime.  They  declare  that  the 
cfime  was  not  only  a  private  injury  to  the  victim,  but 
also  a  public  injury  to  the  peace  of  the  realm. 


PUBLIC  CRIMES 

Public  crimes  are,  as  we  have  seen,  those  acts  that 
primarily  injure  the  fabric  of  the  State  or  of  the  society; 
and  though  they  may  do  so  through  the  injury  of  indi- 
vidual persons,  the  injury  of  the  person  is  swamped  and 
overwhelmed  in  the  eye  of  the  law  by  the  injury  done  to 
the  State  itself.  The  personal  injury  is  of  secondary 
importance.  Thus  understood,  public  crimes  are  of  two 
kinds,  according  as  they  injure  the  functions  of  the  State, 
or  as  they  injure  the  binding  forces  of  society.  We  may 
call  the  former  direct  public  crimes,  and  the  latter  in- 
direct public  crimes;  and  it  will  be  convenient  to  take  the 
latter  first,  since  they  can  be  more  briefly  disposed  of. 


INDIRECT  PUBLIC  CRIMES 

The  first  condition  of  the  social  state  is  that  the  mem- 
bers of  the  society  shall  hold  together.  If  they  disperse, 
the  society  ipso  facto  ceases  to  exist.  In  highly  organized 
societies,  the  individual  members  are  held  together  by 


ii4  CRIME  AND  CRIMINALS 

innumerable  ties,  no  one  of  which  may  be  very  powerful 
or  conspicuous,  and  many  of  them  may  remain  unre- 
cognized; but  the  binding  force  of  them  all  is  like  that 
of  the  threads  with  which  the  Lilliputians  tied  Gulliver 
to  the  ground.  If  they  are  individually  intangible,  they 
are  collectively  infrangible.  Family  life,  school  life, 
community  of  ideals,  physical  propinquity,  the  machinery 
of  supply  and  production,  common  employment,  the 
intricate  complexity  of  social  arrangements,  the  economic 
dependence  of  each  upon  each  and  upon  all,  the  innumer- 
able interests  that  cannot  be  pursued  except  in  common, 
the  firm  organization  of  national  and  municipal  govern- 
ment, the  innumerable  voluntary  associations,  clubs,  and 
societies,  the  all-pervading  system  of  life  assurance — 
each  of  these  things  and  many  more  constitute  threads 
and  bundles  of  threads  binding  every  individual  member 
of  society  to  the  rest  in  inescapable  and  infrangible 
bonds,  from  which  he  cannot  escape  if  he  would,  and 
would  not  escape  if  he  could.  But  in  a  primitive  society 
very  few  of  these  bonds  exist;  and  the  members  of  a 
primitive  society  are  more  wayward,  more  self-asserting, 
less  alive  to  the  benefits  (which  indeed  are  much  less) 
of  social  life,  less  swayed  by  social  obligations,  in  a  word, 
less  socialized,  than  the  members  of  a  highly  civilized 
nation.  In  the  primitive  society  there  are  many  fewer 
bonds  holding  the  members  together,  and  therefore  what 
bonds  there  are  must  be  so  much  the  stronger.  In 
place  of  innumerable  threads,  each  perhaps  of  but  little 
tenacity  but  in  the  aggregate  insuperable,  there  are  two 
or  three  strong  ropes,  which  are  apt  to  gall  in  a  way  that 
the  threads  do  not,  but  which  must  be  preserved,  how- 
ever galling  they  may  be,  or  society  will  fall  to  pieces. 
These  bonds  are  three :  the  power  of  the  central  author- 
ity, the  power  of  religion,  and  the  power  of  custom. 


KINDS  OF  CRIME  115 

The  more  primitive  the  society,  the  less  it  is  advanced 
in  complexity  of  organization,  the  less  firmly  its  institu- 
tions are  consolidated,  the  more  conspicuously  must  the 
power  of  the  ruler  be  displayed  and  kept  before  the 
notice  of  the  ruled.  Hence,  in  less  developed  societies, 
the  government,  whether  of  a  single  tyrant  or  of  an 
oligarchy,  is  always  despotic  and  tyrannical,  and  usually 
capricious  as  well  as  cruel.  In  such  societies,  the  author- 
ity and  will  of  the  monarch  is  one  of  the  three  chief 
forces  that  bind  the  society  together  and  constitute  its 
otherwise  vagrant  members  into  a  society.  In  compari- 
son with  the  advantage  to  the  society  as  a  whole  of  a 
strong  central  government,  the  disadvantage  of  a  cruel 
or  capricious  government  is  but  little.  Cruel,  brutal,  and 
capricious  as  he  was,  John  maintained  England  in  pros- 
perity; for  his  hand,  if  it  was  rough,  was  strong.  But 
under  Stephen,  England  came  within  measurable  distance 
of  ruin,  and  so  it  did  under  Henry  III.  and  Henry  VI.; 
for  in  an  imperfectly  organized  society  the  amiability  of 
the  monarch  does  not  compensate  for  his  weakness.  It 
was  under  the  strong  hands  of  Alfred,  of  Henry  I., 
Henry  VIII. ,  and  Cromwell,  that  England  attained  her 
greatest  prosperity. 

Next  to  the  binding  force  of  the  central  authority, 
even  if  not  still  more  important,  is  the  binding  force  of 
custom.  The  power  of  custom  is  seen  in  the  constant 
determination  of  the  English  to  be  ruled  in  accordance 
with  their  ancient  laws.  The  national  sentiment  was 
embodied  in  the  maxim  Nolumus  leges  Angliw  mutari. 
As  long  as  custom  prevails,  all  the  members  of  the 
society  will  act  in  harmony  with  it  and  with  each  other, 
and  society  is  safe  from  disruption  from  within.  Expli- 
citly and  formally,  internal  harmony  is  enforced  by  law; 
but  law  has  its  origin  in  custom :  it  is  at  first  nothing  but 


u6  CRIME  AND  CRIMINALS 

the  formal  recognition  of  custom;  and  in  its  later  de- 
velopments law  is  powerless  when  it  conflicts  with  custom. 
The  monarch  himself  derives  his  power  from  custom, 
and  is  obeyed  mainly  because  it  is  customary  to  obey 
the  monarch.  This  is  why  every  usurper  strives  to  in- 
vest himself  with  a  legal — that  is,  a  customary — title. 
If  he  can  show  that  he  occupies  his  position  by  virtue  of 
customary  observance,  that  position  is  secure.  That 
which  is  not  customary  is  outlandish.  It  is  foreign.  It 
has  no  part  in  the  life  of  the  society.  It  is  a  disturbing 
agent,  and  raises  against  itself  an  instinct  of  opposition. 
This  instinct  is  one  of  the  deepest  rooted  of  social  in- 
stincts. It  is  founded  on  the  appreciation  of  the  bind- 
ing and  conservative  power  of  custom,  an  appreciation 
none  the  less  real  that  it  is  inarticulate  and  unformulated. 
Hence,  in  a  primitive  society,  as  yet  but  lowly  organized 
and  wanting  in  the  fibrous  bonds  that  so  powerfully  unite 
more  organized  societies,  breach  of  custom  is  injurious 
to  the  society,  and  is  therefore  a  crime.  Even  in  the 
narrow  sense  of  being  forbidden  by  law  it  is  a  crime, 
for  law  is  in  its  origin,  as  has  been  said,  nothing  but 
recognized  and  formulated  custom.  In  more  highly 
organized  societies,  in  which  abundance  of  what  I  have 
called  the  fibrous  bonds  of  society  has  been  established, 
there  is  the  less  need  for  the  binding  power  of  custom; 
and  as  societies  become  more  and  more  intricate  and 
better  and  better  organized,  custom  loses  its  force  and 
falls  more  and  more  into  abeyance.  But  it  is  abandoned 
slowly  and  reluctantly,  and  in  all  developing  societies 
there  is  a  strong  and  often  a  savage  conflict  between 
those  who  would  abandon  custom  and  those  who  would 
maintain  it.  For  long  and  long,  repudiation  of  custom 
is  a  crime;  and  though  it  need  not  be  so  considered  in 
highly  developed  societies,  there  is,  as  has  been  shown, 


KINDS  OF  CRIME  117 

excellent  reason  why  it  should  be  so  regarded,  as  it  al- 
ways has  been,  in  undeveloped  societies.  In  such  socie- 
ties, innovation,  even  in  trifling  matters,  is  a  crime;  and 
many  an  innovator  has  been  torn  to  pieces  as  the  worst 
of  criminals. 

The  third  of  the  ropes  which  bind  young  or  at  any 
rate  immature,  societies  together  until  more  subtle  and 
more  cohesive  bonds  are  developed,  is  the  binding  force 
of  religion.  It  is  unnecessary  to  show  here  how  religion 
enforces  uniformity  of  conduct,  renunciation  of  self- 
re*garding  conduct,  and  reinforces  the  power  of  the  ruler 
as  long  as  he  reciprocates  the  benefit  by  supporting  the 
priesthood  with  his  authority.  Most  of  what  has  been 
said  of  custom  applies  to  religion  also,  which  is,  indeed, 
the  great  depositary  and  safeguard  of  custom,  and  which 
tends  ever  more  and  more  to  be  identified  with  custom 
and  lost  in  it.  Uniformity  of  religion  is,  in  imperfectly 
developed  societies,  perhaps  the  most  powerful  of  all  the 
cohesive  forces,  and  therefore  any  attack  upon  the  pre- 
vailing religion  is  deeply  injurious  to  society,  and  conse- 
quently is  a  crime.  In  such  societies  it  is  always  regarded 
as  a  crime,  and  cannot  with  safety  to  society  be  other- 
wise regarded  until  a  late  stage  of  social  development 
is  reached.  That  stage  appears  to  have  been  reached 
now  in  the  most  highly  developed  societies,  and  in  them 
attacks  upon  religion  are  no  longer  regarded  as  public 
crimes;  but  they  may  be  still  in  certain  cases  rightly  re- 
garded as  private  crimes,  as  will  be  shown  further  on. 

Meanwhile,  we  are  to  notice  that  for  practical  pur- 
poses, in  this  and  other  highly  organized  societies  at  the 
present  day,  public  crimes  do  not  include  attacks  upon 
religion,  but  are  restricted  to  attacks  upon  the  functions 
and  the  officers  of  the  State.  To  discover  what  these 
crimes  are  and  to  enumerate  them  in  detail,  it  will  be 


ii8  CRIME  AND  CRIMINALS 

necessary  to  enumerate  the  functions  of  the  central  power 
in  the  State,  which  is  now  shifted  from  the  monarch  to 
the  collective  Government. 


DIRECT  PUBLIC  CRIMES 

Treason 

The  primary  functions  of  the  State  are  to  defend  itself 
from  external  foes,  and  to  preserve  its  internal  integrity. 
Unless  these  functions  are  efficiently  performed,  the  so- 
ciety must  perish,  either  by  assault  from  without  or  by 
disintegration  and  dissolution  from  within. 

For  the  first  purpose,  the  State  maintains  its  Foreign 
Office,  its  diplomatic  service,  its  navy  and  army,  its  ar- 
senals and  cadet  schools,  and  all  the  auxiliary  services 
by  whose  means  it  conducts  its  relations  with  foreign 
States,  and  preserves  itself  against  attack  and  injury 
from  without  its  own  borders. 

The  internal  integrity  of  the  State  is  preserved  by 
keeping  of  the  peace;  and  for  this  purpose  the  State 
provides,  not  only  officers  whose  duty  it  is  to  prevent 
and  stop  breaches  of  the  peace,  officers  to  try  and 
officers  to  punish  offenders,  and  a  machinery  for  the 
prevention  of  crime,  but  also  a  system  for  administering 
justice  between  citizen  and  citizen,  which  supersedes 
private  conflict,  and  provides  in  its  stead  a  peaceful 
method  of  settling  disputes. 

These  are  the  primary  functions  of  the  State,  and 
any  act  of  any  of  its  citizens  that  impairs  these  primary 
functions  is  ipso  facto  a  crime.  The  two  functions  are 
not  co-ordinate,  nor  of  equal  importance.  The  first  and 
fundamental  function  of  every  society  is  to  preserve  its 
own  existence,  and  the  maintenance  of  internal  peace. 


KINDS  OF  CRIME  119 

important  as  this  is,  is  after  all  only  important  as  a  means 
to  this  further  end  of  social  preservation.  The  first,  the 
fundamental,  the  primary  function  of  every  society  is 
to  preserve  its  own  existence;  and  as  in  the  scheme  of 
nature — that  is,  in  biological  truth — the  individual  is  of 
no  importance  except  as  a  means  of  carrying  on  the  race, 
and  must  be  ruthlessly  sacrificed  if  the  interests  of  the 
race  demand  it,  so  equally  in  the  scheme  of  nature  and 
in  biological  truth  must  the  interests  of  the  social  whole 
swajnp  and  preponderate  over  that  of  any  individual 
member  of  it.  Reproduction  always  and  inevitably  de- 
mands some  sacrifice,  usually  only  temporary,  but  always 
some  sacrifice  of  the  life-worthiness  and  welfare  of  the 
parent.  Sociality  always  and  inevitably  demands  some 
sacrifice  of  the  self-interest  and  self-indulgence  of  each 
member  of  the  social  body.  In  time  of  peace,  and  when 
the  safety  of  the  nation  is  not  menaced  by  external  foes, 
this  sacrifice  is  limited  to  that  forbearance  and  restriction 
of  activity  that  I  have  already  described;  but  when  the 
society  is  menaced  by  aggression  from  without,  the  duty 
of  its  members  is  to  defend  it.  As  in  peace  the  conven- 
ience of  each  must  give  way  to  the  welfare  of  the  whole, 
so  in  war  the  safety  of  each  is  forfeit  to  the  safety  of 
the  whole.  The  imperative  and  inescapable  duty  of 
every  member  of  a  society  is  to  defend  the  society  to  the 
uttermost,  even  to  the  sacrifice  of  his  life,  when  the 
society  is  in  danger;  and  only  on  this  condition  can  a 
society  continue  to  exist,  only  on  this  condition  can  mem- 
bership of  a  society  be  claimed,  only  on  this  condition 
can  membership  of  a  society  be  honestly  enjoyed.  To 
enjoy  the  benefits  of  social  life  without  undertaking  the 
primary  and  fundamental  duty  of  social  life  is  the  basest 
dishonesty,  and  should  not  be  permitted.  It  reduces  the 
Status  of  humanity  below  that  of  social  insects.  The  man. 


120  CRIME  AND  CRIMINALS 

who  perpetrates  such  a  crime  is  inferior  in  morality  to 
a  wasp  or  an  ant,  and  should  be  put  out  of  the  society 
whose  membership  he  has  forfeited  by  committing  the 
meanest  and  most  cowardly  of  crimes.  There  is  but  one 
crime  more  heinous,  and  that  is  to  assist  actively  the 
enemies  of  the  State  to  which  the  criminal  belongs  or 
in  which  he  is,  or  to  constitute  himself  an  enemy  of  the 
State,  and  himself  attack  it  in  the  person  of  its  sovereign, 
in  that  of  any  of  the  great  officers  of  the  State,  or  gen- 
erally to  attack  the  fabric  of  the  State,  by  rebellion  or 
otherwise.  All  these  acts  are  included  in  the  crime  of 
high  treason. 

Jt  is  treason  to  act  in  such  a  way  as  to  impair  the 
defensive  power  of  the  State,  either  by  weakening  by 
mutiny,  or  by  inciting  to  mutiny  the  forces  of  the  Crown ; 
or  by  spying,  or  revealing  any  information  calculated  to 
be  useful  to  an  enemy  of  the  State ;  or  by  inciting  others 
to  refrain  from  joining  the  army  or  navy,  or  from  doing 
in  any  other  way  their  duty  to  the  State. 

So,  too,  it  is  treason,  not  technically,  not  in  English 
law,  but  jurisprudentially  it  is  treason  to  do  that  which 
is  calculated  to  embroil  the  State  with  other  States,  either 
by  writing  or  by  assisting  in  any  way  the  rebellious  sub- 
jects of  those  States,  or  in  any  other  manner. 

A  minor  form  of  treason,  called  sedition,  is  to  excite 
discontent  and  disaffection  towards  the  constitution  of 
the  State  in  such  a  way  as  to  weaken  it  and  impair  its 
primary  functions. 


BREACH  OF  THE  PEACE 

The  second  of  the  primary  and  fundamental  functions 
of  the  State  is  to  keep  the  peace  within  its  own  borders. 
It  is  manifest  that  this  is  a  condition  of  the  very  exist- 


KINDS  OF  CRIME  121 

ence  of  the  State  as  a  society.  As  has  already  been 
shown,  society  cannot  exist  except  by  the  mutual  forbear- 
ance of  its  members;  and  if  any  of  its  members  will  not 
voluntarily  exercise  this  forbearance  towards  others,  he 
must  be  compelled  to  do  so,  or  the  society  will  disinte- 
grate and  dissolve.  Let  the  process  become  universal, 
let  every  man's  hand  be  turned  against  every  other  man, 
and  social  life  is  at  an  end;  man  is  then  become  a  solitary 
animal.  Hence  society  in  its  own  defense  and  by  its  col- 
lective strength  must  put  a  stop  to  internecine  strife  be- 
tween its  members.  Hence  the  earliest  internal  function 
of  a  society  is  to  institute  law,  by  which  disputes  among 
its  members  may  be  settled  by  arbitrament  instead  of  by 
private  war;  and  the  degree  to  which  civilization  is  ad- 
vanced may  be  measured,  first,  by  the  completeness  with 
which  the  legal  settlement  of  disputes  has  displaced 
violence,  and  second,  by  the  rarity  of  appeals  to  law. 
When  private  war  is  put  down  by  the  hand  of  a  strong 
central  authority,  which  offers  litigation  as  an  alternative, 
litigation  is  freely  and  frequently  employed,  and  is  only 
another  form  of  private  war;  and  this  is  a  manifestation 
of  that  want  of  mutual  forbearance  that  shows  imperfect 
socialization.  When  socialization  is  complete,  litigation 
will  die  out  as  private  strife  and  breaches  of  the  peace 
have  died  out. 

It  may  seem  prima  facie  that  if  two  people  choose  to 
settle  their  differences  by  fighting  it  out  in  private,  so 
as  not  to  cause  terror  or  disturbance  to  other  people,  it 
is  no  concern  of  any  one  but  themselves;  but  the  con- 
siderations that  have  been  advanced  show  that  this  is  not 
so.  It  is  not  so,  because,  in  a  society,  conduct  must  be 
regulated  by  the  principle  of  considering  what  would 
happen  If  such  conduct  were  to  become  general.  If 
dueling  or  private  violence  in  any  form  were  to  become 


122  CRIME  AND  CRIMINALS 

general,  society  would  dissolve;  and  therefore  every  in- 
stance of  such  conduct  must  be  prevented,  or  put  a  stop 
to,  or  punished.  A  breach  of  the  peace  is  a  crime,  and 
so  is  every  incitement  to  a  breach  of  the  peace,  or  any 
act  calculated  to  lead  to  a  breach  of  the  peace. 

SUBSIDIARY  PUBLIC  OFFENSES 

In  order  that  its  two  primary  functions  of  defense  of 
the  realm  and  keeping  the  peace  may  be  performed  ef- 
fectively, certain  machinery  and  certain  officers  must  be 
appointed  by  the  State.  For  the  first  purpose  the  dip- 
lomatic service,  the  Foreign  Office,  the  army  and  navy, 
arsenals,  clothing  factories,  and  so  forth  must  be  estab- 
lished and  maintained;  and  for  the  second  purpose  the 
whole  machinery  of  the  police,  the  administration  of 
justice,  and  the  prison  service,  are  established  and  main- 
tained. Any  interference  with  the  efficiency  of  this  ma- 
chinery is  of  necessity  injurious  to  society,  and  is  therefore 
a  crime;  and  thus  a  new  class  of  public  crimes  is  con- 
stituted. Impairment  of  the  efficiency  of  these  services 
may  arise  from  within  them  or  from  without.  It  may 
arise  from  corruption  or  neglect  or  abuse  of  their  posi- 
tion on  the  part  of  the  officials  of  the  administration, 
or  it  may  arise  from  interference  with  them  in  the  execu- 
tion of  their  duties  by  other  persons  outside  the  adminis- 
tration; and  thus  we  may  constitute  two  sub-classes  of 
these  public  crimes. 

In  order  that  the  machinery  for  performing  those  two 
primary  functions  of  the  State  may  be  provided  and 
maintained,,  the  State  must  have  a  revenue  wherewith  to 
pay  its  officers  and  to  provide  the  necessary  buildings 
and  appliances,  and  to  this  revenue  every  citizen  ought  to 
contribute  in  proportion  to  his  ability.  Any  act  that 


KINDS  OF  CRIME  123 

impairs  the  revenue  is  directly  injurious  to  society,  and 
constitutes  a  grave  public  crime. 

All  acts  that  are  injurious  to  the  machinery  by  which 
the  two  primary  functions  of  the  State  are  carried  on, 
whether  the  injury  is  caused  directly  by  one  of  the 
methods  enumerated  above,  or  indirectly  by  impairing 
the  revenue  or  producing  an  unjust  incidence  of  the  rev- 
enue, is  a  subsidiary  public  crime.  From  what  has  been 
said  it  will  appear  that  these  crimes  may  be  divided  into 
the;-£ollowing  classes : — 

I.  Crimes  that  impair  the  machinery  of  external  de- 
fense of  the  realm.    These  have  already  been  dealt  with 
as  minor  treasons. 

II.  Crimes  that  are  calculated  to  impair  the  adminis- 
tration of  justice. 

III.  Crimes  that  are  calculated  to  impair  the  revenue. 
In  each  case  the  crime  may  be  committed  either  by  an 

officer  entrusted  by  the  State  with  the  working  of  the 
machinery,  or  by  a  person  outside  the  official  ranks. 


Crimes  against  the  Administration  of  Justice 

Under  the  administration  of  justice  we  may  include, 
not  only  proceedings  in  courts  of  law,  but  also  the  func- 
tions of  the  police  in  preventing  crime,  in  bringing  it 
home  to  its  perpetrators,  in  arresting  them  and  bringing 
them  to  justice;  the  functions  of  the  prison  officials  in 
punishing  offenders;  and  the  functions  of  the  courts  in 
settling  disputes  between  one  citizen  and  another.  Any 
interference  with  any  of  these  functions  either  from 
within  the  service  or  from  without  is  a  crime.  It  is  a 
crime  even  to  refrain  from  assisting  in  the  administra- 
tion of  justice  when  opportunity  offers  or  when  we  are 
called  upon  to  do  so. 


124  CRIME  AND  CRIMINALS 

Crimes  of  the  first  sub-class  are  committed  whenever 
the  officers  engaged  in  the  administration  of  justice  neg- 
lect, or  pervert,  or  abuse,  or  exceed,  their  functions. 
The  policeman  who  winks  at  an  offense,  or  who  fails  to 
carry  out  an  order,  or  who  utilizes  his  exceptional  oppor- 
tunities to  commit  the  crimes  that  he  is  engaged  to  pre- 
vent, or  to  assist  the  criminals  that  he  is  engaged  to 
arrest,  or  who  abuses  his  authority  by  tyrannizing  over 
the  citizens  whom  he  is  engaged  to  protect,  or  exercises 
for  his  own  advantage  the  powers  entrusted  to  him,  is 
guilty  of  a  crime  against  the  administration  of  justice. 
Instigation  to  crime  by  a  private  person  is  a  heinous 
offense,  but  it  is  exceeded  in  turpitude  when  the  instiga- 
tion is  made  by  an  officer  specially  employed  by  the  State 
to  prevent  crimes  and  arrest  offenders.  For  the  agent 
(provocateur  there  is  no  name  in  the  vernacular,  and  the 
absence  of  the  name  points  to  the  rarity  of  the  thing  to 
which  the  name  applies.  The  crime  is  unknown  in  this 
country,  but  other  countries  are  less  fortunate,  and  in 
some  the  crime  is  frequent. 

Analogous  offenses  committed  by  officers  of  the  court 
or  by  prison  officials  are  extremely  rare  in  this  country, 
but  they  are  possible;  they  were  at  one  time  not  un- 
known here,  as  the  instances  of  Bacon,  Scroggs,  and  Jef- 
freys prove,  and  they  >are  extremely  frequent  in  back- 
ward countries  such  as  Turkey. 

We  may  congratulate  ourselves  that  in  this  country 
the  administration  of  justice  is  so  pure  that  interference 
with  it  by  its  own  officers  is  in  every  department  practi- 
cally unknown. 

But  the  administration  of  justice  may  be  vitiated  by 
unofficial  persons  acting  upon  it  from  without,  and  crimes 
of  this  sub-class  are  unfortunately  not  so  rare.  They 


KINDS  OF  CRIME  125 

are  of  two  kinds :  crimes  of  omission  and  crimes  of  com- 
mission. 

It  has  been  shown,  and  the  whole  treatment  of  the 
subject  in  this  book  hangs  upon  the  demonstration,  that 
crime  is  the  product  of  two  factors,  the  internal  and  the 
external — the  mental  constitution  of  the  criminal  and  the 
strength  of  the  temptation  to  which  he  is  subjected.  It 
follows  that  part  of  the  duty  of  every  citizen  is  to  refrain 
from  subjecting  others  to  the  temptation  to  commit 
crime.  Active  solicitation  to  commit  crime  is  recognized 
in  fhe  jurisprudence  of  every  country  as  an  offense,  and 
a  very  serious  offense;  but  there  are  other  ways  of  hold- 
ing out  temptation  to  crime  besides  active  solicitation, 
and  these  ways  are  not  recognized  and  stigmatized  as 
they  should  be.  We  constantly  see  accounts  of  crimes 
committed  because  the  sight  of  means  to  do  ill  deeds  has 
made  ill  deeds  done ;  of  embezzlements  that  would  never 
have  been  committed  if  proper  supervision  had  been  ex- 
ercised, proper  auditing  and  accounting  put  in  force.  He 
who  is  careless  in  leaving  money  about,  who  has  no  proper 
system  of  checking  the  transactions  of  his  subordinates, 
who  allows  his  accounts  to  get  into  confusion,  who  is 
negligent  in  stocktaking,  who  has  no  proper  system  of 
audit,  is  affording  opportunity  that  may  amount  to  temp- 
tation to  commit  crime,  and  for  such  negligence  he 
should  be  punished.  He  is  contributing  to  crime,  and  to 
contribute  to  crime  is  itself  an  offense.  The  principle  is 
already  recognized  in  the  regulations  forbidding  shop- 
keepers to  expose  their  wares  unsupervised  to  the  ready 
appropriation  of  passers-by;  but  though  recognized  in 
this  single  instance,  the  principle  is  not  applied  as  widely 
or  as  regularly  as  it  should  be.  Magistrates  frequently 
animadvert  on  the  carelessness  and  negligence  of  em- 
ployers who  have  left  temptation  in  the  way  of  their 


126  CRIME  AND  CRIMINALS 

employees;  but  animadversion  is  not  enough.  In  the 
view  of  a  competent  jurisprudence,  such  carelessness  and 
negligence  is  an  offense,  and  should  be  punishable  as  an 
offense.  It  is  directly  contributing  to  crime,  which  it  is 
the  function  of  the  administration  of  justice  to  repress. 
There  are  other  neglects  and  omissions  that  occur  at 
later  stages  in  the  administration  of  justice.  Every 
member  of  a  social  body  owes  it  to  his  society  to  refrain 
from  conduct  that  shall  facilitate  crime ;  and  every  citizen 
owes  it  to  the  State  to  assist  in  the  arrest  of  the  crim- 
inal when  crime  has  been  committed.  This  obligation 
was  formally  embodied  in  the  law  of  hue-and-cry  in  the 
days  before  officers  were  specially  appointed  for  the  duty 
of  arresting  criminals.  When  a  crime  was  committed, 
the  onus  was  on  the  frankpledge  to  show  that  none  of 
its  members  was  the  criminal,  or  to  arrest  and  surrender 
him  if  he  were  a  member  of  the  frankpledge.  If  the 
criminal  fled,  it  was  the  legal  duty  of  every  hundredman 
to  raise  the  hue-and-cry,  and  to  pursue  him  to  the  bord- 
ers of  the  hundred  or  of  the  county.  Now  that  police 
are  constituted  for  the  purpose  of  pursuing  and  arrest- 
ing criminals,  the  duty  of  the  private  citizen  in  this 
regard  is  fallen  into  abeyance,  but  it  still  exists.  It 
is  latent,  but  it  still  exists;  and  neglect  to  aid  in  the  arrest 
of  a  criminal  when  called  upon  by  competent  authority 
to  do  so  is  still  in  law,  as  it  ought  to  be,  a  punishable 
offense. 

If  it  is  a  crime  to  refrain  from  arresting  a  criminal,  a 
fortiori  it  is  a  crime  to  obstruct  or  hinder  his  arrest,  and 
it  is  still  more  criminal  to  contrive  or  assist  his  rescue 
from  custody  or  his  escape  from  the  officers  of  justice, 
whether  before  or  after  conviction. 

'Every  citizen  owes  a  duty  to  the  State  to  assist,  not 
only  in  the  arrest  of  an  offender,  but  also  in  his  trial, 


KINDS  OF  CRIME  127 

whether  by  serving  as  a  juror  or  by  giving  evidence  as  a 
witness.  In  the  former  capacity  it  is  not  enough  to 
attend  when  summoned  and  to  take  his  seat  in  the  jury- 
box:  he  is  under  obligation  to  pay  as  much  attention, 
and  to  exercise  at  least  as  careful  a  judgment,  as  he  would 
do  in  a  matter  of  equal  importance  to  himself. 

In  his  capacity  as  witness,  his  duty  is  to  come  forward 
and  tender  evidence  if  he  can  assist  the  ends  of  justice 
by  doing  so.  To  neglect  a  summons  to  give  evidence  is 
an^pffense;  and  when  the  witness  is  in  court  he  is  sworn 
to  tell  the  truth,  the  whole  truth,  and  nothing  but  the 
truth;  and  if  he  violates  his  oath,  he  commits  a  crime, 
and  is  punishable  for  perjury.  Nor  does  his  obligation 
to  justice  end  here.  He  cannot  evade  it  by  refusing  to 
answer  a  question.  To  refuse  to  answer  a  question  after 
taking  the  oath  to  tell  the  whole  truth  is  an  offense,  and 
punishable  as  such.  To  this  rule  there  is  in  this  country 
an  exception,  due  to  the  extraordinary  tenderness  with 
which  English  law  treats  the  criminal.  A  witness  cannot 
be  compelled  to  answer,  or  rather  cannot  be  punished 
for  refusing  to  answer,  a  question  if  the  answer  would 
criminate  himself.  The  law  seems  to  me  absurd  and 
perverse.  The  purpose  of  a  criminal  trial,  and  of  the 
law  governing  criminal  trials,  should  be  to  arrive  at  the 
truth  with  respect  to  the  perpetrators  of  the  crime,  to 
discover  those  who  are  guilty  and  acquit  those  who  are 
not.  To  ask  a  witness  point-blank,  Did  you  commit  this 
crime?  is  not  in  the  least  unfair  to  the  witness,  and  may 
conceivably  be  the  means  of  acquitting  an  innocent  pris- 
oner. It  is  not  unfair,  but  it  is  injudicious,  on  the  ground 
already  insisted  on  supra,  that  it  holds  out  a  very  strong 
temptation  to  a  guilty  witness  to  commit  the  additional 
crime  of  perjury.  This  should  be  avoided;  but  there  is 
nothing  unfair  to  the  witness  in  the  question,  and  there 


128  CRIME  AND  CRIMINALS 

is  no  reason  in  justice  why  he  should  not  be  punished 
for  refusing  to  answer  a  question  solely  on  the  ground 
that  if  he  did  answer  it  truly,  the  answer  would  incid- 
entally incriminate  him.  In  its  anxiety  to  be  fair  to 
the  accused  person,  the  law  is,  I  think,  unfair  to  society 
at  large  which  the  law  has  been  constituted  to  pro- 
tect. 

If  it  is  an  offense  to  give  false  evidence,  or  to  refrain 
from  giving  evidence,  or  to  destroy  or  falsify  evidence, 
a  fortiori  it  is  an  offense  to  attempt  to  induce  another 
witness  to  err  in  either  way.  Hence  intimidation  of  a 
witness,  or  bribery  or  subornation  of  him,  is  a  grave  pub- 
lic offense. 

Manifestly,  it  is  a  still  graver  offense  to  attempt  to 
influence,  except  by  evidence  and  argument  in  court,  the 
judge  or  a  juror  engaged  in  trying  a  case. 

After  conviction,  the  criminal  must  undergo  his  pun- 
ishment, neither  more  nor  less  than  the  court  awards.  It 
is  criminal,  therefore,  to  contrive  or  assist  his  escape 
from  custody,  or  to  seek  to  mitigate  his  punishment  by 
any  means  but  those  that  the  law  prescribes,  or  to  aggra- 
vate the  punishment  by  any  means  whatever. 

Included  in  the  administration  of  justice  are  not  only 
the  discovery,  arrest,  trial,  and  punishment  of  offenders, 
but  also  measures  for  the  prevention  of  crime;  and  any 
tampering  with  these  measures  is  included  among  grave 
public  offenses.  Such  are  violations  of  the  Prevention  of 
Crimes  Acts,  and  of  certain  provisions  of  the  Pawn- 
brokers and  other  Acts. 

Another  function  included  in  the  administration  of 
justice  is  the  legal  settlement  of  disputes  between  private 
citizens;  and  in  this  matter  also  it  is  the  duty  of  every 
citizen  to  give  what  help  he  can,  and  neglect  of  this  duty 
is  a  grave  public  offense.  If  he  is  summoned,  either  as 


KINDS  OF  CRIME  129 

a  juror  or  as  a  witness,  he  is  under  the  same  obligation 
to  attend  as  in  a  criminal  case,  and  is  equally  bound  to 
abstain  from  any  conduct  that  is  calculated  to  interfere 
with  the  cause  of  justice.  Even  if  he  is  not  summoned 
to  attend,  he  must  not  express  a  premature  opinion  on 
the  merits  of  the  case,  or  on  the  claim  of  one  or  other 
party  to  succeed,  since  such  an  expression  is  calculated 
to  interfere  with  the  course  of  the  trial  and  to  influence 
the  minds  of  the  jurors  apart  from  the  evidence  and 
arguments  in  court,  by  which  alone  they  ought  to  be 
guided.  Any  such  conduct  constitutes  a  grave  public  of- 
fense. 

Lastly,  the  administration  of  justice  is  interfered  with 
from  without  if  persons  who  are  not  authorized  to  do  so 
pretend  to  be  officers  of  justice  and  to  exercise  their 
functions.  Hence  it  is  a  grave  public  offense  for  a  per- 
son who  is  not  a  solicitor  to  pretend  to  be  one,  or  for 
a  person  who  is  not  a  constable  to  pass  himself  off  as 
one  and  to  act  in  that  capacity.  Personation  of  other 
officers  of  justice  is  rare. 

Crimes  against  the  Revenue 

The  next  class  of  grave  public  offenses,  a  small  but 
important  class,  consists  of  offenses  against  the  Revenue, 
and  includes  not  only  acts  by  which  the  amount  of  reve- 
nue collected  is  diminished,  but  also  acts  of  squander- 
ing and  wasteful  expenditure  of  the  national  revenue. 
The  law  recognizes  as  offenses  such  acts  as  smuggling 
and  evasions  of  excise,  but  it  does  not  punish  as  it  should 
do  evasions  of  income  tax,  which  are  easy,  and  are  no 
doubt  prevalent;  and  it  does  not  recognize  the  wasteful 
expenditure  of  public  money  as  an  offense,  though  in  any 
complete  system  of  jurisprudence  such  conduct  ought  un- 


130  CRIME  AND  CRIMINALS 

doubtedly  to  be  so  recognized.  The  Departments  of  the 
Government  take  scrupulous  and  even  excessive  care  to 
check  the  expenditure  of  pence,  at  the  same  time  that  they 
place  no  check  upon  the  profligate  waste  of  millions  of 
pounds.  Many  years  ago  a  witness  gave  evidence  before 
a  Select  Committee  of  the  House  of  Commons  to  the  ef- 
fect that  if  an  official  were  to  stand  at  the  end  of  Dover 
pier  with  sacks  of  gold  around  him,  and  were  to  throw 
handfuls  of  gold  into  the  sea  from  morning  till  night, 
he  could  not  waste  money  as  fast  as  it  is  wasted  by  the 
great  spending  Departments  of  the  Government;  and  it  is 
the  general  testimony  of  business  men  who  have  examined 
the  methods  of  Government  Departments  that  if  a  pri- 
vate business  were  conducted  by  similar  methods,  it 
would  very  soon  be  brought  to  bankruptcy.  Recent  in- 
vestigations into  the  expenditure  incurred  during  the  war 
have  confirmed  and  extended  these  conclusions.  The 
waste  in  some  Departments  has  been  profligate  and  out- 
rageous; and  although  it  has  been  checked  and  dimin- 
ished, no  one  has  been  punished  for  even  the  most  flag- 
rant extravagance.  This  is  a  serious  defect  in  the  law. 
The  expenditure  of  the  public  revenue  should  be  safe- 
guarded; and  profligate  extravagance  should  be  treated 
as  what  it  is,  a  grave  public  offense. 

If  the  extravagant  administration  of  public  funds  is,  or 
should  be,  considered  a  grave  public  offense,  a  fortiori 
wilful  or  negligent  damage  to  public  property  is  an  of- 
fense of  the  same  description. 

CRIMES  AGAINST  THE  OFFICERS  OF  STATE 

It  is  manifestly  expedient  that  the  officers  of  the  State, 
many  of  whose  duties  excite  resentment  in  those  upon 
whom  they  are  exercised,  should  be  protected  in  the  ex- 


KINDS  OF  CRIME  131 

erci&e  of  these  duties;  and  any  assault  upon  an  officer 
of  State  in  his  capacity  as  such  is  a  grave  public  offense. 
Offenses  of  this  kind  are  of  very  various  degrees  of 
magnitude,  the  gravity  varying  not  so  much  with  the 
seriousness  of  the  assault  as  with  the  importance  of  the 
office  whose  holder  is  assaulted.  Thus,  the  gravest  of- 
fense of  the  kind  is  the  treason-felony  of  an  assault  upon 
the  person  of  the  Sovereign.  By  English  law,  it  is  high 
treason  to  slay  the  Lord  High  Chancellor,  the  Lord 
High  Treasurer,  the  King's  Justices,  or  any  other  justice 
being  in  his  place  and  doing  his  office.  In  this  matter  the 
law  is  antiquated  and  no  longer  adapted  to  the  existing 
state  of  affairs.  The  Treasury  has  long  been  in  com- 
mission, and  the  office  of  Lord  High  Treasurer  in  abey- 
ance. The  Lord  Chancellor,  though  he  takes  rank  as 
third  person  in  the  realm,  immediately  after  the  Arch- 
bishop of  Canterbury,  is  no  longer  the  Chief  Officer  of 
State,  that  place  being  taken  by  the  Prime  Minister, 
whose  office  is  unknown  to  the  law,  and  who  does  not 
receive  the  protection  accorded  to  a  county  Justice  of  the 
Peace  sitting  in  petty  sessions  to  fine  hawkers  for  ped- 
dling without  a  license.  When  in  the  last  century  a 
Prime  Minister  was  murdered,  the  crime  was  an  ordinary 
felony,  and  not  even  a  treasonable  felony,  far  less  high 
treason;  and  so  the  law  stands  now,  though  the  Prime 
Minister,  as  the  working  sovereign,  is  de  facto  the  most 
important  person  in  the  realm. 

It  is  only  when  public  officers  are  assaulted  in  their 
official  capacity — that  is  to  say,  either  when  engaged  in 
their  official  duties  or  because  of  some  act  or  omission 
in  the  course  of  their  official  duty — that  the  offense 
comes  under  the  public  class.  When  the  assault  arises 
out  of  a  private  quarrel  or  is  for  a  private  reason,  it  is 
a  private  offense,  whoever  may  be  the  victim,  unless  he 


132  CRIME  AND  CRIMINALS 

is  the  Sovereign,  or  unless,  as  in  the  case  of  some  other 
officials,  he  can  never  be  considered  off  duty.  Though 
the  seriousness  of  the  offense  varies  with  the  importance 
of  the  official,  the  nature  of  the  offense  is  the  same 
whether  the  official  is  the  Sovereign  himself,  or  a  police- 
constable,  or  a  prison  warden. 

Personal  violence  and  assault  are  not  the  only  ways  in 
which  offenses  may  be  committed  against  officers  of  the 
State  as  such.  Their  property  may  be  damaged  in  re- 
venge for  some  official  act  or  omission.  The  Duke  of 
Wellington  and  Mr.  Gladstone  had  their  windows 
broken  on  this  motive,  and  during  the  suffragette  out- 
rages of  a  few  years  ago,  many  offenses  of  the  same 
character  were  committed  against  many  public  offi- 
cers. 

All  such  offenses  are  attempts  to  influence  by  intimi- 
dation the  manner  in  which  public  officers  shall  discharge 
their  duties.  There  is  another  method  by  which  influence 
may  be  brought  to  bear  upon  them  for  the  same  purpose, 
viz.  bribery  and  corruption.  This  also  is  a  public  offense, 
and  one  of  great  gravity. 

ABUSE  OF  OFFICIAL  POSITION 

The  last  of  the  grave  public  offenses  is  abuse  of  his 
official  position  by  an  officer  of  the  State.  This  is  a  rare 
offense  in  this  country,  though  in  some  others  it  is  com- 
mon enough.  With  us  it  is  quite  unknown  among  su- 
perior officers,  and  the  high  tradition  of  our  public 
services,  together  with  the  publicity  in  which  public  duties 
are  for  the  most  part  performed,  is  likely  to  keep  us  free 
from  it.  There  are  rumors  from  time  to  time  of  the 
harrying  of  outcast  women  by  police-constables,  rumors 
that  are  not  substantiated;  but  beyond  this,  no  one  in. 


KINDS  OF  CRIME  133 

this  country,  not  even  a  convict  in  prison,  has  reason  to 
complain  of  oppression  by  persons  in  official  positions. 


MINOR  PUBLIC  OFFENSES 

All  the  offenses  hitherto  discussed  are  acts  or  omis- 
sions that  are  calculated  to  impair,  directly  or  indirectly, 
one  of  the  two  primary  functions  of  the  State,  the  de- 
fense of  the  realm  or  the  keeping  of  the  peace.  These 
are^the  primary  and  fundamental  functions  of  the  State, 
which  must  be  efficiently  performed,  at  whatever  cost  to 
the  individuals  composing  the  State,  or  the  State  can 
continue  to  exist  only  by  the  forbearance  of  other  States, 
which,  in  the  present  degree  of  civilization,  cannot  be 
reckoned  on  with  confidence;  and  even  if  foreign  States 
forbear  to  attack  it,  yet  if  the  peace  is  not  kept  and 
justice  is  not  administered,  the  society  will  lapse  into  bar- 
barism, as  we  see  it  does  in  places,  such  as  many  parts  of 
the  Turkish  Empire. 

While  these  are  the  primary  functions  of  the  State, 
they  are  not  its  only  functions.  Modern  States  assume 
various  minor  functions,  which  are  not,  as  the  primary 
functions  are,  necessary  for  the  preservation  of  the  State, 
but  are  desirable,  either  for  the  convenience  of  the 
citizens  at  large,  or  for  the  protection  of  its  weaker  mem- 
bers, or  to  minimize  risks  of  injury,  or  to  serve  the  safety 
of  the  citizens  by  concerted  efforts  to  prevent  epidemic 
and  other  disease,  or  in  other  ways  to  serve  the  public 
welfare.  The  primary  functions  of  the  State  are  per- 
manent and  unchangeable,  though  the  means  by  which 
they  are  effected  are  subject  to  constant  change  in  the 
effort  to  render  them  more  efficient;  but  the  secondary 
and  minor  functions  of  the  State,  with  which  we  are  now 
concerned,  are  subject  to  continual  alteration,  both  as  to 


134  CRIME  AND  CRIMINALS 

the  means  employed  and  as  to  the  nature  and  number  of 
the  functions  themselves.  In  this  country  before  the 
war,  the  tendency  was  for  the  State  to  assume  more  and 
more  of  these  subsidiary  functions,  such  as  the  education 
of  the  children,  and  care  for  the  health  of  the  people, 
that  had  previously  been  left  to  private  enterprise;  and 
since  the  war  began,  very  many  more  functions  have 
been  taken  over  by  the  State,  partly  as  directly  contri- 
buting to  the  prosecution  of  the  war,  partly  to  equalize 
by  central  authority  the  burdens  and  inconveniences  im- 
posed by  the  necessities  of  war.  No  doubt  the  assump- 
tion of  many  of  these  functions  is  only  temporary,  and 
will  cease  when  the  war  ends;  but  no  doubt  certain  of 
them  will  remain  in  the  hands  of  the  State  after  the  war 
is  concluded. 

The  secondary  or  minor  functions  of  the  State  may 
be  divided  into  those  that  are  exercised  wholly  by  the 
State  itself;  those  that  it  delegates  wholly  to  subordinate 
bodies,  such  as  municipalities,  with  original,  if  limited, 
legislative  power;  and  a  third  intermediate  class  which 
the  State  exercises  through  the  intermediation  of  Com- 
mittees which  have  no  legislative  power,  but  have  a  dis- 
cretion in  the  exercise  of  administrative  powers.  To  the 
first  class  belong  the  State  monopolies;  to  the  second  be- 
long local  police  regulations,  and  those  of  railway  com- 
panies and  dock  and  harbor  boards,  river  conservancy 
authorities,  and  so  forth ;  and  to  the  third  the  Poor  Law, 
much  of  the  Lunacy  Law,  and  the  Public  Health  service. 

Or  minor  public  functions  may  be  divided  on  a  differ- 
ent plan,  according  to  the  purpose  that  they  seek  to 
attain.  On  this  plan  these  functions  will  consist  of  four 
groups,  according  as  their  purpose  is  to  serve  the  con- 
venience of  the  citizens;  to  protect  the  weaker  members 
from  wrongdoing  at  the  hands  of  the  stronger;  to  minim- 


KINDS  OF  CRIME  135 

ize  risks  of  injury  and  disease ;  or  to  add  to  the  pleasures 
and  amenities  of  life;  and  this  is  perhaps  the  more  con- 
venient though  the  less  philosophical  division. 

To  serve  these  purposes,  many  laws  have  been  enacted 
by  the  legislature,  and  many  by-laws  by  municipalities 
and  other  bodies,  to  whom  legislation  within  restricted 
areas  and  on  special  subjects  has  been  delegated.  In- 
fractions of  these  laws  are  public  offenses;  but  it  is  evi- 
dent that  they  stand  on  a  very  different  footing  from 
the^-grave  public  offenses  that  have  already  been  con- 
sidered. These  latter  strike  at  the  very  constitution  of 
society,  and  if  they  are  not  suppressed,  will  in  time  de- 
stroy the  society  altogether;  but  minor  public  offenses 
have  no  such  effect.  The  State  existed  and  flourished 
for  ages  before  it  exercised  these  functions,  and  if  they 
were  all  swept  away  to-morrow,  the  State  could  get  along 
very  well  without  them.  They  are  not,  as  the  two  pri- 
mary functions  are,  vital  to  the  existence  of  the  State. 

The  only  State  monopolies  in  this  country  in  time  of 
peace  are  the  minting  of  coin  and  the  delivery  of  letters, 
telegrams,  and  telephone  messages.  The  State  has  un- 
dertaken these  monopolies  for  the  public  convenience, 
and  infringement  of  the  monopoly  is  a  public  offense,  but 
an  offense  of  the  minor  class. 

The  limits  of  the  legitimate — that  is  to  say,  the  bene- 
ficial— action  of  the  State  in  undertaking  manufacturing 
and  commercial  transactions  have  been  the  subject  of 
much  controversy,  but  that  it  is  beneficial  for  the  State 
to  undertake  and  monopolize  the  manufacture  of  coin 
has  scarcely  ever  been  questioned  Curiously  enough, 
the  manufacture  of  banknotes,  which  are  documentary 
coins,  does  not  stand  upon  the  same  footing,  at  least  in 
this  country.  It  is  a  monopoly,  indeed,  but  not  a  State 
monopoly,  and  therefore  forging  of  banknotes  is  not  a. 


i36  CRIME  AND  CRIMINALS 

public  offense,  as  making  of  counterfeit  coins  is.  The 
purpose  of  the  State  in  undertaking  the  coinage  is  to 
ensure  that  the  coinage  shall  be  pure  and  shall  not  de- 
part from  a  standard  value.  Hence  it  is  an  offense, 
not  only  to  infringe  the  monopoly  of  coining,  but  also  to 
defeat  the  purpose  of  the  monopoly  by  diminishing  the 
value  of  current  coin. 

Infringement  of  the  Post  Office  monopoly  is  rare,  for 
it  offers  little  advantage.  Stealing  letters  while  in  transit 
is  a  public  offense  on  the  same  ground  that  defacing 
the  coin  of  the  realm  is  a  public  offense,  viz.  that  it  de- 
feats the  purpose  of  the  monopoly,  the  swift  and  certain 
delivery  of  letters. 

Fraud  by  the  wrongful  use  of  postmarks  is,  in  a  post- 
office  official,  a  grave  public  offense,  since  it  is  an  abuse 
of  his  powers  as  a  public  officer;  but  the  participation 
of  a  private  person  in  the  same  fraud  is  a  private  offense, 
and  offenders  convicted  of  it  are  convicted  of  fraud,  a 
private  offense,  and  not  of  abuse  of  the  functions  of  the 
Post  Office. 

The  second  class  of  minor  functions  of  the  State  con- 
sists of  those  embodied  in  the  various  laws  for  the 
protection  of  the  weak — of  those  who  are  by  reason  of 
weakness  in  body,  or  mind,  or  wealth,  or  position,  or 
ability  to  gain  employment,  or  age,  or  in  any  other  re- 
spect, unable  to  protect  themselves,  and  at  the  mercy  of 
others  who  may  be  inclined  to  take  advantage  of  their 
weakness.  The  protection  of  such  weaklings  is  the  pur- 
pose of  the  Poor  Law,  the  Lunacy  Law,  the  Factory 
Law,  the  Truck  Acts,  Employment  of  Children  Acts,  to 
which  may  be  added  the  Money-lenders  Act,  Gaming 
and  Betting  Acts,  and  many  others.  Infringements  of 
these  Acts  constitute  minor  public  offenses. 

A  large  class  of  legislation  consists  of  those  laws  that 


KINDS  OF  CRIME  137 

provide  for  the  prevention,  or  at  least  the  minimization, 
of  risk  of  injury  to  persons,  either  by  one  another,  or  in 
the  course  of  their  employment,  or  by  disease,  or  in  other 
ways.  Since  their  purpose  is  to  protect  people  from  in- 
jury, they  may  be  called  Protective  Laws.  They  are 
closely  akin  to  those  of  the  previous  class,  which  may 
be  called  the  Benevolent  Laws,  and  provision  for  both 
purposes  is  often  made  in  the  same  enactment.  Legis- 
lation for  the  general  protection  of  the  weak  is  embodied 
in  s^Hch  acts  as  the  Public  Health  Acts,  the  Vaccination 
Acts,  the  Protection  of  Machinery  Act,  Motor  Vehicles 
Acts,  besides  many  municipal  regulations.  The  senti- 
ment of  tenderness  towards  suffering  is  now  so  developed 
that  it  extends  even  to  the  sufferings  of  the  lower  animals, 
and  gives  rise  to  the  Cruelty  to  Animals  Acts,  Wild  Birds 
Protection  Acts,  and  so  forth,  infringement  of  any  of 
which  is  punishable  as  a  minor  public  offense. 

The  fourth  class  of  minor  public  offenses  consists  of 
interference  with  the  purposes  of  those  laws  that  aim 
not  merely  at  preventing  harm,  but  at  actively  benefiting 
the  citizens  of  the  State  by  adding  to  the  advantages  and 
amenities  of  their  lives.  Such  is  the  object  of  the  laws 
enacting  compulsory  education,  providing  for  town- 
planning,  for  the  regulation  of  the  royal  parks,  for  the 
preservation  of  ancient  monuments,  and  so  forth;  and 
such  are  the  municipal  regulations  for  the  provision  and 
upkeep  of  parks,  recreation  grounds,  baths,  washhouses, 
and  other  amenities  of  life.  Amongst  other  paternal 
functions  of  this  kind,  the  State  takes  pains  to  secure  to 
such  as  can  afford  them  the  enjoyment  of  certain  amuse- 
ments— that  is  to  say,  the  pursuit  and  slaughter  of  game ; 
and  that  they  may  enjoy  these  amusements  to  the  full 
and  without  disturbance,  the  State  prohibits  the  indis- 
criminate slaughter  of  game  by  unauthorized  persons. 


i38  CRIME  AND  CRIMINALS 

The  Game  Laws  are  among  the  oldest  in  the  kingdom, 
and  among  the  most  severe.  It  is  a  little  difficult  to 
find  an  appropriate  title  for  this  fourth  class  of  minor 
public  offenses,  as  was  felt  by  Bentham,  who  has  acutely 
pointed  out  the  cause  of  the  difficulty.  "  Necessaries," 
he  says,  "  come  always  before  luxuries.  The  state  of 
language  marks  the  progress  of  ideas.  Time  out  of  mind 
the  military  department  has  had  a  name;  so  has  that 
of  justice;  the  power  which  occupies  itself  in  preventing 
mischief,  not  till  lately,  and  that  but  a  loose  one,  the 
police;  for  the  power  which  takes  for  its  object  the  in- 
troduction of  positive  good,  no  peculiar  name,  however 
inadequate,  seems  yet  to  have  been  devised."  In  another 
book,  Crime  and  Insanity,  I  have  called  these  the  Sal- 
utary Laws.  They  would  be  more  appropriately  called 
Melioristic  or  perhaps  Hedonistic  Laws.  Bentham  calls 
offenses  of  this  class  offenses  against  hedonarchic  trust, 
and  all  the  offenses  that  I  here  call  minor  public  offenses 
he  would  denominate  agatho-poieutic  (agathopoieo,  to 
do  good  to  any  one).  His  title  has  not  been  adopted, 
however. 

SUICIDE 

This  is  the  only  place  in  a  classification  of  crimes  in 
which  the  act  of  suicide  will  fit;  and  although  in  English 
law  suicide  is  a  crime,  it  does  not  follow  that  there  is 
anything  necessarily  criminal  in  the  act,  and  prima  facie 
it  requires  re-examination  in  this  regard,  since  it  is  one 
of  the  class  of  offenses  that  was  originally  ecclesiastical, 
and  in  the  separation  of  ecclesiastical  from  civil  offenses 
was  placed  on  the  wrong  side  of  the  line.  As  will  be 
recorded  on  a  subsequent  page,  there  was  originally  no 
distinction,  at  any  rate  no  clear  distinction,  between  civil 


KINDS  OF  CRIME  139 

and  ecclesiastical  offenses.  The  judge  and  the  bishop 
sat  side  by  side  in  the  same  court,  and  together  tried 
every  offense  that  came  before  them.  At  length  the  dis- 
tinction— always,  no  doubt,  more  or  less  dimly  present 
to  their  minds — became  so  manifest  that  the  courts  were 
separated,  the  bishops  trying  ecclesiastical  offenses  in  the 
ecclesiastical  courts,  and  the  judges  trying  civil  offenses 
in  the  civil  courts.  There  ensued  a  very  natural  conflict 
between  the  two  courts  as  to  their  respective  jurisdictions. 
BefVeen  the  two  was  a  large  margin  of  uncertainty,  and 
it  frequently  happened  that  cases  were  transferred  from 
the  one  court  to  the  other,  and  each  court  strove  to  en- 
large its  jurisdiction  at  the  expense  of  the  jurisdiction 
of  its  rival.  The  ecclesiastical  courts  sought  every  avail- 
able pretext  for  exempting  ecclesiastical  officers,  however 
trifling  their  connection  with  the  Church,  and  whether 
they  were  in  holy  orders  or  not,  from  the  jurisdiction  of 
the  King's  courts.  The  King's  courts  not  only  strove  to 
maintain  their  jurisdiction  over  the  civil  offenses  of  ec- 
clesiastics, but  also  availed  themselves  of  every  pretext 
to  transfer  disputes  concerning  tithes  from  the  ecclesias- 
tical to  the  civil  courts.  The  consequence  of  this  conflict 
was  that,  when  the  complete  separation  of  the  two  juris- 
dictions was  at  last  effected,  it  was  effected  not  according 
to  any  logical  principle,  but  very  much  at  haphazard; 
and  thus  it  resulted  that  adultery,  a  civil  offense,  re- 
mained on  the  ecclesiastical  side,  and  suicide,  an  eccles- 
iastical offense,  is  still  triable  in  the  King's  courts. 

Is  suicide  a  crime?  Ought  it  to  be  considered  a  crime? 
Ought  attempts  to  commit  it  to  rank  with  attempts  to 
commit  crimes?  Ought  he  who  assists  or  encourages 
or  advises  suicide  to  be  punishable  as  an  accessory  to 
crime?  These  are  several  questions,  and  do  not  admit 
of  a  single  answer;  and  in  seeking  an  answer  we  must 


i4o  CRIME  AND  CRIMINALS 

avoid  being  prejudiced  by  the  practice  of  our  own  coun- 
try. In  England,  suicide  is  felony,  one  of  the  gravest 
crimes  known  to  the  law.  Suicide  was  not  a  crime  in 
Roman  law,  nor  is  it  a  crime  in  those  countries  that 
derive  their  law  from  Rome.  In  France  it  is  no  crime, 
and,  on  the  contrary,  is  regarded  as  in  some  circum- 
stances an  honorable  and  praiseworthy  act,  as  readers  of 
Monte  Cristo  will  remember.  In  Japan  it  is  regarded 
in -much  the  same  light;  and  in  India  it  was  until  recently 
looked  upon  as  an  imperative  duty  when  it  took  the  form 
of  suttee.  In  the  practice  and  estimation  of  nations, 
therefore,  we  find  no  such  uniformity  as  will  warrant  us 
in  deciding  one  way  or  the  other.  If  we  look  to  the  au- 
thorities, we  do  not  gain  much  better  guidance.  Bent- 
ham,  indeed,  enumerates  suicide  among  offenses  against 
population;  but  as  he  includes  in  the  same  class  celibacy 
and  emigration,  it  is  evident  that  his  classification  would 
not  be  accepted  now.  Beccaria,  though  he  does  not  posi- 
tively assert  that  suicide  is  no  crime,  yet  says  that  it 
"  seems  not  to  admit  of  punishment,  properly  speaking, 
for  it  cannot  be  inflicted  but  on  the  innocent,  or  upon  an 
insensible  dead  body."  It  is  evident  from  his  subsequent 
remarks  that  he  considers  it,  if  a  crime  at  all,  yet  of  less 
turpitude  than  emigration.  Fitzjames  Stephen  pro- 
nounces no  positive  opinion  beyond  this:  "It  would,  I 
think,  be  a  pity  if  Parliament  were  to  enact  any  measure 
tending  to  alter  the  feeling  with  which  it  [suicide]  is  and 
ought  to  be  regarded  " — that  is,  as  a  cowardly  and  dis- 
graceful act.  He  gives  no  reason,  however,  for  this 
opinion. 

In  origin,  as  I  have  said,  suicide  was  not  a  civil  but  an 
ecclesiastical  offense.  The  suicide  was  condemned  by 
the  Church  for  depriving  himself  of  that  life  that  had 
been  bestowed  upon  him  by  his  Maker  to  be  used  for 


KINDS  OF  CRIME  141 

the  glory  of  his  Maker.  My  own  opinion  is  that,  civilly, 
the  suicide  is  to  blame  if  and  when  by  his  suicide  he 
evades  obligations  to  the  State  or  to  individual  members 
of  the  State.  In  such  a  case  he  does,  I  think,  undoubtedly 
commit  an  offense,  and  should  be  held  in  reprobation 
and  should  suffer  a  punishment  in  proportion  to  the  of- 
fense. There  are  other  circumstances,  also,  that  would 
make  the  act  an  offense.  There  have  been  such  occur- 
rences as  epidemics  of  suicide.  One  such  took  place  in 
Ediiffjurgh  in  the  sixteenth  century,  and  was  put  a  stop 
to  by  punishment.  The  epidemic  was  restricted  to  wo- 
men, and  ceased  when  proclamation  was  made  that  in 
future  the  bodies  of  suicides  would  be  exposed  naked  in 
the  market-place.  It  is  manifestly  of  importance  to  the 
State  that  an  epidemic  of  suicide  should  not  occur,  or, 
if  it  does,  should  be  put  a  stop  to ;  and  this  affords  guid- 
ance as  to  whether  suicide  should  be  considered  a  crime 
per  se;  for,  generally,  that  is  an  offense  which,  if  it  be- 
came a  universal  practice,  would  be  destructive  to  society. 
It  is  undoubtedly  a  direct  injury  to  the  State  that  the 
number  of  its  citizens  should  be  diminished;  but  only 
if  the  individuals  removed  from  it  are  profitable  and  de- 
sirable members  of  the  society.  That  it  is  not  considered 
a  disadvantage  to  the  State  to  lose  its  undesirable  mem- 
bers is  shown  by  the  former  system  of  transporting 
criminals  to  distant  colonies;  and  that  it  is  not  considered 
disadvantageous  to  lose  even  worthy  and  competent 
citizens  is  shown  by  the  toleration  and  even  the  encour- 
agement that  is  afforded  to  emigration.  It  can  scarcely 
be,  therefore,  that  the  ground  on  which  suicide  is  re- 
garded as  an  offense  is  that  it  impairs  the  integrity  of 
society  by  the  removal  of  a  competent  and  desirable 
member;  and,  undoubtedly,  many  persons  who  commit 
or  attempt  to  commit  suicide  are  neither  competent  nor 


I42  CRIME  AND  CRIMINALS 

desirable.  The  only  ground  for  its  retention  among 
offenses  seems  to  be  that  it  was  originally  left  on  the 
civil  side  when  ecclesiastical  offenses  were  withdrawn 
from  the  jurisdiction  of  civil  courts,  and  that  the  natural 
conservatism  of  the  law  has  kept  it  there.  That  even 
lawyers  realize  that  suicide  is  out  of  place  as  a  civil 
offense  is  shown  by  the  levity  with  which  it  is  treated  in 
courts  of  law.  Although  it  is  nominally  a  felony,  attempt 
at  suicide  is  not  in  practice  treated  even  as  a  misde- 
meanor. The  offender  is  almost  always  treated  with 
commiseration,  and  the  post-mortem  punishment  of  the 
successful  suicide  by  deprivation  of  religious  funeral 
rites,  by  ignominious  burial  in  a  highway,  and  by  driving 
a  stake  through  the  body,  has  been  abolished  by  statute 
for  nearly  a  century. 


CHAPTER  V 
PRIVATE  CRIMES 

EVERY  crime  is  an  act  or  omission  by  which  the  criminal 
seeks  his  own  gratification  at  the  expense  of  some  injury 
to  £he  society  to  which  he  belongs.  Selfishness  is  at  the 
bottom  of  every  crime.  In  a  very  small  proportion  of 
crimes  it  is  an  enlarged  selfishness,  which  includes  the 
family  of  the  criminal,  or  the  members  of  his  trade  or 
of  his  social  class,  or  some  other  section  of  society  to 
which  he  belongs  or  with  which  he  identifies  himself,  and 
to  whose  interest,  or  supposed  interest,  he  is  willing  to 
sacrifice  the  welfare  of  the  whole  society.  We  saw 
before  the  war  that  the  members  of  a  sex  were  willing 
to  sacrifice  the  welfare  of  the  whole  State  for  the  grati- 
fication ostensibly  of  the  sex,  really  of  a  small  proportion 
of  the  sex.  Crimes  of  this  reflected  and  larger  selfish- 
ness, though  not  absolutely  infrequent,  are,  relatively  to 
the  total  of  crimes,  very  few  indeed;  though  from  time  to 
time,  as  in  the  case  of  the  suffragette  crimes  and  in  that 
of  the  trades-union  crimes  organized  by  Broadhead  in 
the  last  century,  they  attract  a  great  deal  of  attention. 
When  we  speak  of  crime  as  the  triumph  of  selfishness 
over  sociality,  we  must,  in  order  to  cover  every  case, 
understand  selfishness  in  this  larger  sense;  but  the  cases 
in  which  it  is  necessary  thus  to  enlarge  our  concept  of 
selfishness  constitute  but  a  minute  proportion  of  the 
whole  body  of  crime. 

We  have  seen  in  a  previous  chapter  that  all  motives 
of  human  conduct  may  be  reduced  ultimately  to  three 
143 


144  CRIME  AND  CRIMINALS 

— self-preservative,  or  self-advantageous,  or,  briefly  sel- 
fish motives;  social-preservative,  or  social-advantageous, 
or,  briefly,  social  motives;  and  a  third  group,  the  racial, 
in  which  family  motives  are  included.  Crime  consists 
in  the  gratification  of  any  motive  of  the  first  and  last 
classes  at  the  expense  of  the  social;  and  thus  it  seems 
that  crimes  of  the  private  class  may  be  divided  sharply 
into  two,  according  as  they  are  prompted  by  motives  of 
procuring  self-advantage  or  of  satisfying  the  racial, 
which  means  in  practice  the  sexual,  instinct.  On  this 
plan  a  thoroughly  scientific  classification  of  crimes  might 
be  made;  but  there  are  a  few  crimes  in  which  self- 
advantage  is  sought  by  utilizing  and  pandering  to  sexual 
motives  in  others,  and  a  few  in  which  self-advantage  is 
sought  by  infringing  the  family  principle,  by  desertion 
or  bigamy  for  instance,  or  by  infringing  the  racial  prin- 
ciple, as  by  abandoning  or  neglecting  children.  It  would 
lead  to  considerable  practical  inconvenience  to  separate 
these  from  the  racial  and  family  offenses  and  include 
them  in  the  selfish  offenses,  and  therefore  in  this  respect 
the  strict  scientific  classification  will  be  departed  from. 
This  being  understood,  private  crimes,  by  which  are 
understood  those  acts  and  omissions  that  are  injurious 
to  society  as  a  whole,  not  by  attacking  the  primary  or 
secondary  functions  of  the  State,  but  by  injuring  its  in- 
dividual members,  and  so  impairing  its  fabric  by  a  process 
of  attrition,  are  of  two  primary  classes :  those  that  seek 
self-gratification  in  the  self-preservative  field,  and  those 
that  seek  self-gratification  by  either  indulging  or  infring- 
ing the  racial  principle. 


PRIVATE  CRIMES  145 

PRIVATE  OFFENSES  OF  THE  SELF-PRESERVATIVE  CLASS 

Self-preservative  conduct  falls  naturally  into  two  divi- 
sions— that  which  is  concerned  with  securing  personal 
safety,  and  that  by  which  the  livelihood  is  earned  and 
the  means  are  administered.  Both  departments  of  con- 
duct are  profoundly  modified  by  the  social  state.  Every 
one  owes  a  duty  to  himself  to  preserve  his  own  life  and 
to  earn  his  own  living,  to  secure  for  himself  food,  rai- 
ment, housing,  and  such  other  advantages  as  he  can;  but 
every  one  owes  a  duty  to  the  society  to  which  he  belongs 
to  pursue  these  ends  with  due  forbearance  towards  his 
fellows,  certainly  not  wilfully  to  injure  them,  and  as  far 
as  in  him  lies  to  aid  them  in  their  own  struggle  to  attain 
the  same  ends.  We  have  already  seen  that  forbearance 
is  the  root  of  sociality.  It  is  the  foundation  upon  which 
society  rests;  and  if  society  is  to  be  preserved,  each  in- 
dividual member  of  it  must  so  pursue  his  own  safety  and 
his  own  wealth  as  not  to  injure  his  neighbor  in  the  pur- 
suit. Incidental  and  unintentional  injury  cannot  always 
be  avoided,  but  intentional  and  wilful  injury  of  others 
for  one's  own  benefit  is  always  criminal. 

As  self-preservative  conduct,  so  the  crimes  that  are 
committed  from  motives  of  self-preservation  are  divis- 
ible into  two  corresponding  classes :  first,  those  that  seek 
to  secure  personal  safety  by  the  injury  of  others,  and 
second,  those  that  seek  to  acquire  gain  by  the  injury  of 
others;  or,  otherwise  put,  crimes  prompted  by  fear,  pug- 
nacity, and  vindictiveness  and  crimes  prompted  by  greed. 

Crimes  of  Malice 

Under  the  general  title  of  malice  we  may  include  the 
three  motives  of  timidity,  pugnacity,  and  vindictiveness, 


I46  CRIME  AND  CRIMINALS 

all  of  which  concern  and  direct  conduct  in  circumstances 
of  personal  danger  and  insecurity,  and  especially  conduct 
towards  enemies. 

Among  the  physical  dangers  that  beset  primitive  man, 
the  most  constant  are  those  that  arise  from  the  turbu- 
lence and  aggression  of  his  fellows.  Primitive  man  lives 
in  constant  warfare,  and  even  in  relatively  advanced  com- 
munities and  in  historic  times,  property  is  held  upon  the 
good  old  rule,  the  simple  plan,  that  they  should  take 
who  have  the  power,  and  they  should  keep  who  can.  In 
these  circumstances,  pugnacity  and  vindictiveness  are 
valuable  qualities,  assisting  in  the  survival  of  societies 
no  less  than  of  families  and  individuals.  Timidity  also, 
which  prompts  to  constant  watchfulness  and  readiness 
to  safeguard  oneself  upon  the  least  threatening  of 
danger,  is  not  without  value.  Pugnacity  and  vindictive- 
ness  are  a  protection  against  aggression  and  injury.  An 
aggressor  will  think  twice  before  incurring  a  retaliation 
that  is  certain,  and  that  may  overcome  his  attack  and 
bring  disaster  upon  him;  so  that  they  become  valuable 
qualities,  and  are  fostered  by  natural  selection.  Valuable 
as  they  are,  however,  to  the  society,  and  even  to  the 
individual,  as  safeguards  against  aggression,  yet,  as  con- 
tributing to  turbulence  and  strife  within  the  society,  they 
are  anti-social  also,  and  no  community  can  thrive  unless 
tfiey  are  kept  in  check  and  restrained  within  bounds. 
When  they  prompt  to  internecine  strife  within  the  society, 
they  are  criminal  in  the  sense  used  here  of  being  injurious 
to  the  society;  and  the  same  applies  to  timidity,  which 
often  prompts  to  sly  and  deceitful  injury  of  others. 

Life  is  a  struggle,  not  only  between  societies,  but  also 
between  the  several  individual  members  of  a  society.  As 
every  blade  of  grass  and  every  plant  competes  with  its 
neighbor  for  light  and  air  and  food,  so  does  every  in- 


PRIVATE  CRIMES  H7 

dividual  member  of  a  community  compete  with  his  neigh- 
bors for  his  livelihood;  and  competition  is  of  the  nature 
of  strife,  and  readily  leads  to  further  strife.  The  suc- 
cessful competitor  at  least  outstrips  his  rivals,  and  is 
apt  to  leave  those  rivals  sore  and  ill-disposed  towards 
him;  and  in  attaining  success  he  is  apt  to  inflict  injury 
upon  his  rivals,  either  negatively  or  positively.  A  suc- 
cessful trader  benefits  many:  he  benefits  those  from 
whom  he  buys,  those  to  whom  he  sells,  and  those  whom 
he*employs;  but  he  can  scarcely  avoid  injuring  his  rivals, 
not  only  negatively  by  attracting  to  himself  custom  that 
but  for  him  would  have  gone  to  them,  but  also  positively 
by  taking  their  customers  away  from  them.  When  we 
remember  that  competition  enters  into  almost  all  modes 
of  gaining  a  livelihood,  we  shall  see  that  occasions  of 
provocation  must  constantly  arise,  and  we  shall  not  be 
surprised  if  the  inherent  timidity,  vindictiveness,  or  pug- 
nacity of  mankind  find  frequent  occasions  for  their  dis- 
play. 

To  prevent  the  ill  consequences  that  must  result  to  a 
society  from  internecine  strife  among  its  members,  every 
society  makes  two  provisions.  In  the  first  place,  it  stig- 
matizes such  strife  as  a  criminal  offense,  and  provides 
punishment  for  it;  and  in  the  second,  it  provides  a  sub- 
stitute in  the  shape  of  litigation  before  a  tribunal.  If 
a  citizen  considers  himself  aggrieved  by  the  conduct  of 
another  citizen,  his  duty  is  to  seek  redress,  not  by  direct 
retaliation,  but  by  the  arbitrament  of  the  tribunal  that 
his  society  has  constituted  for  that  purpose.  In  many 
cases,  however,  the  aggrieved  party  is  too  exasperated 
to  wait  for  the  slow  course  of  the  law;  in  others  he  has 
no  legal  remedy;  and  accordingly  he  takes  the  matter 
into  his  own  hand  and  seeks  to  injure  his  enemy  directly. 
In  doing  so  he  commits  a  private  malicious  offense. 


i48  CRIME  AND  CRIMINALS 

The  aim  of  an  aggrieved  person  in  pursuing  his  own 
private  scheme  of  vengeance  is  to  injure  his  enemy.  The 
respects  in  which  he  can  injure  his  enemy  are  various, 
and  thus  we  are  able  to  divide  malicious  crimes  accord- 
ing as  they  aim  to  injure  the  antagonist  or  victim  in  per- 
son, in  property,  in  reputation,  or  in  feelings. 

Malicious  personal  injuries  and  assault  become  more 
and  more  rare  with  the  increasing  socialization — that  is, 
with  the  rising  morality  of  modern  advanced  societies. 
Official  statistics  of  crimes  of  violence  make  no  reference 
to  the  motives  on  which  such  crimes  are  committed;  but, 
judging  from  the  reports  of  trials,  it  would  seem  that 
but  few  crimes  of  violence  are  committed  on  this  motive. 
Malicious  murder  is  extremely  rare  in  this  country, 
nearly  all  murders  committed  by  the  sane  being  from  the 
motive  of  gain  or  from  jealousy.  Manslaughter  from  a 
malicious  motive  is  less  rare;  the  very  provocation  that 
elicits  a  fatal  retaliation  in  hot  blood  is  an  element  in 
reducing  the  homicide  from  murder  to  manslaughter. 
Crimes  of  malicious  wounding  are  relatively  more  fre- 
quent, but  only  relatively,  the  total  number  in  the  year 
1909-10  being  only  343,  as  against  38  of  manslaughter 
and  1 6  of  murder  from  all  motives.  The  large  number 
of  cases  of  wounding  in  comparison  with  the  graver 
crimes  indicates  the  mollification  of  vindictiveness  in 
these  latter  days.  If  we  remember  the  prevalence  of 
dueling  a  hundred  years  ago,  and  the  comparative  in- 
difference with  which  the  taking  of  human  life  was  then 
regarded,  we  cannot  fail  to  appreciate  that  the  taking  of 
life  from  malicious  motives  has  very  greatly  dimin- 
ished. 

Whether  a  malicious  assault  is  fatal  to  the  victim,  or 
whether  it  merely  wounds  or  injures  him,  or  whether  it 
only  frightens  him,  or  whether  he  is  not  even  aware  of  it, 


PRIVATE  CRIMES  149 

so  that  it  does  him  no  harm  whatever,  makes  very  im- 
portant differences  in  the  character  of  the  crime  in  law, 
and  very  important  differences  in  the  punishment  that 
is  awarded  to  it.  A  murderous  assault  that  is  completely 
successful  and  secures  the  death  of  the  victim  is  a  capital 
crime,  and  is  punished  by  death.  An  assault  precisely 
similar  in  every  respect,  in  which  the  same  weapon  was 
used  with  the  same  determined  intention  of  causing  the 
immediate  death  of  the  victim,  but  which  failed  from 
some  accidental  circumstance  beyond  the  control  of  the 
criminal,  would  be  only  an  assault,  and  punishable  at 
the  utmost  by  two  years'  imprisonment.  If,  for  instance, 
A  places  a  pistol,  knowing  it  to  be  loaded,  to  the  head 
of  B,  and  pulls  the  trigger,  whereby  the  pistol  is  dis- 
charged and  B  falls  dead,  A  is  guilty  of  murder;  but  if 
in  precisely  the  same  circumstances  the  pistol  misses  fire, 
so  that  B  suffers  no  injury,  A  is  guilty  at  the  utmost  of  an 
assault  with  intent  to  commit  a  felony.  If,  aimed  from 
a  distance,  the  pistol  misses  fire,  or  the  bullet  goes  wide 
of  the  mark,  or  merely  grazes  the  victim,  or  wounds  him 
severely  but  not  fatally,  or  kills  him,  these  are  in  law  five 
different  offenses;  and  if,  on  the  other  hand,  a  man,  in 
order  to  break  into  a  house,  puts  a  pistol  to  the  lock  of 
the  door  and  fires  it,  whereby  a  person  on  the  other  side 
of  the  door  is  killed,  the  offense  is  murder,  although  the 
offender  had  no  knowledge  that  any  one  was  within  reach 
of  the  bullet,  and  no  intention  of  injuring  any  one;  and 
if  a  thief  in  trying  to  escape  from  the  pursuit  of  a  police- 
man, trips  up  the  policeman,  who  falls  on  his  head  and 
is  killed,  the  act  is  murder  by  the  thief,  and  is  punish- 
able by  death.  Even  if  a  thief  throws  a  missile  at  a 
hen,  intending  to  kill  the  hen  in  order  that  he  may  steal 
it,  and  the  missile  hits  and  kills,  not  the  hen,  but  a  man, 
the  thief  is  guilty  of  murder. 


150  CRIME  AND  CRIMINALS 

Such  discrepancies  outrage  one's  sense  of  justice,  and 
cannot  be  justified.  The  guilt  lies  in  the  intention  as 
soon  as  the  intention  is  endorsed  by  the  will  and  issues 
in  action.  An  act  done  with  intent  to  murder,  or  to 
commit  any  other  crime,  incurs  all  the  turpitude  of 
murder  or  of  the  other  crime,  whatever  that  may  be, 
and  no  more ;  and  the  punishment  should  be  in  pro- 
portion to  the  turpitude  of  the  crime  attempted,  and 
should  not  be  mitigated  or  aggravated  because,  owing 
to  circumstances  out  of  the  control  of  the  criminal,  the 
effect  of  his  act  was  less  or  more  than  he  intended  it  to 
be.  This  seems  to  me  so  manifestly  just  that  the  con- 
trary does  not  appear  to  me  to  be  arguable.  The  law 
presumes  that  if  A  aims  a  gun  at  B,  and  fires  it  and 
misses,  there  may  have  been  in  the  mind  of  A,  at  the 
moment  he- pulled  the  trigger,  some  hesitation,  some  re- 
laxation of  his  lethal  intention,  some  inclination  to  forgo 
his  purpose,  and  that  this  hypothetical  diminution  of  in- 
tention at  the  last  moment  so  far  exonerates  him  from  his 
guilt  as  to  make  an  indefeasible  claim  upon  justice  for  a 
mitigation  of  punishment.  The  presumption  seems  to 
me  fantastic,  without  a  shadow  of  justification,  and  in 
violation  of  the  other  presumption  of  law  that  a  man 
intends  the  natural  consequence  of  his  act.  The  natural 
consequence  of  aiming  and  firing  a  gun  at  a  person  is  to 
kill,  or  at  least  to  wound,  that  person;  and  it  is  for  the 
intention,  and  not  for  the  consequence,  that  the  actor 
should  be  punished.  If  it  be  said  that  we  can  always 
tell  the  injury  that  actually  is  produced,  but  can  never 
be  certain  how  much  injury  was  intended,  the  answer  is 
conclusive.  The  whole  criminal  law  is  based  upon  the 
determination  of  intention,  and  intention  must  be  deter- 
mined in  every  criminal  trial.  What  I  contend  for  is 
that  the  principle  should  be  applied  logically  and  with 


PRIVATE  CRIMES  151 

equity,  and  not  capriciously  and  at  haphazard,  as  it  is 
applied  now. 

The  next  form  of  crime  that  is  prompted  by  malice  is 
injury  to  the  property  of  the  person  against  whom  the 
malice  is  harbored.  Malicious  damage  to  property  is 
not  a  frequent  offense.  Such  crimes  constitute  only  2.7 
per  cent,  of  indictable  offenses,  and  attain  in  this  coun- 
try to  an  annual  total  of  only  about  240.  As  a  rule 
they^are  stupid  crimes,  committed  by  stupid  persons;  a 
large  proportion  of  them — a  larger  proportion,  perhaps, 
than  any  other  crime  with  the  exception  of  murder — 
being  committed  by  persons  who  are  actually  insane. 
They  range  from  the  malicious  firing  of  haystacks,  and 
even  of  houses,  to  the  malicious  breakage  of  crockery. 
In  many  cases  of  "  malicious  "  destruction,  the  motive 
is  not  so  much  that  of  distressing  another  person  by 
injuring  his  property,  as  blind  rage,  which  finds  an  outlet 
in  destructiveness,  as  when  a  man  thrusts  his  fist  through 
the  window  and  smashes  anything  that  is  handy,  whether 
it  belongs  to  his  antagonist,  or  to  some  third  party,  or 
even  to  himself. 

A  peculiar  and  detestable  injury  sometimes  perpetrated 
on  property  is  that  of  maiming  or  mutilating  live  stock 
out  of  malice  towards  the  owners.  The  practice  was  a 
short  time  ago  frequent  in  Ireland,  when  it  took  the  form 
of  cutting  off  the  tails  of  cattle  belonging  to  an  unpopular 
owner.  This  dastardly  crime  is  unknown  beyond  the 
shores  of  Ireland,  and  it  is  to  be  hoped  will  remain 
so. 

Other  crimes  of  a  peculiarly  heinous  kind  consist  in 
the  use  of  explosives  to  destroy  houses  and  ships.  It 
would  appear  that  these  are  seldom  wholly  malicious 
crimes,  though  an  element  of  malice  no  doubt  enters 
into  the  motive  for  them,  They  are  usually  political, 


152  CRIME  AND  CRIMINALS 

and  therefore  public  offenses,  or  anarchical,  and  then  are 
international  offenses.  The  same  means  have  been  em- 
ployed by  the  Germans  in  the  present  war  to  destroy 
neutral  as  well  as  enemy  civilian  property.  According 
to  international  as  well  as  national  law,  such  acts  are 
crimes,  and  it  is  to  be  hoped  that  they  will  meet  in  due 
time  with  condign  punishment. 

Another  detestable  injury  to  property  is  that  of  at- 
tempting in  various  ways  to  cause  the  wreck  of  railway 
trains,  heedless  of  the  loss  of  life  that  may  ensue.  There 
is  reason  to  believe  that  in  some  cases  this  rare  crime 
has  been  committed  by  present  or  former  employees  of 
the  railway  company  in  revenge  for  some  neglect  or 
grievance,  real  or  fancied.  In  other  cases  the  perpetra- 
tor has  remained  undiscovered,  and  perhaps  unsuspected, 
and  the  motive  is  difficult  to  conjecture.  In  a  few  cases, 
but  not  in  this  country,  it  has  been  committed  for  the 
purpose  of  stealing  from  the  wreckage,  and  would  then 
fall  in  another  class  of  crimes,  those  committed  for  gain. 

The  third  mode  of  malicious  injury  is  by  inflicting 
injury  on  the  character  and  reputation  of  the  victim. 
There  can  be  no  doubt  that,  generally,  defamation  of 
character  is  injurious  to  society.  It  is  in  breach  of  the 
forbearance  that  every  member  of  a  society  is  in  duty 
bound  to  exercise  towards  every  other;  it  tends  to  loosen 
social  ties,  to  alienate  the  members  of  the  society  from 
one  another,  and,  if  the  practice  were  to  become  univer- 
sal, would  in  time  disintegrate  the  society  altogether.  At 
the  same  time,  it  is  important  that  the  untrustworthy 
should  not  be  trusted,  and.  that  the  antecedents  of  those 
with  whom  we  have  important  relations  should  be  known 
to  us.  Hence  it  is  proper  that  we  should  be  able  to 
receive  and  communicate  such  knowledge  without  having 
the  fear  of  criminal  proceedings  before  our  eyes.  And 


PRIVATE  CRIMES  153 

yet  again,  it  is  but  fair  and  right  that  he  who  has  once 
strayed  from  the  paths  of  rectitude  should  have  opport- 
unity of  re-establishing  his  character  without  having  his 
former  offense  cast  up  against  him.  The  English  law  of 
libel  seems  to  steer  satisfactorily  between  these  difficul- 
ties, and  to  work  out  in  practice  fairly  to  all  parties. 

Besides  by  defamation  of  character,  there  are  other 
ways  in  which  the  feelings  may  be  outraged,  and  persons 
mavjje  subjected,  by  the  malice  of  others,  to  grievous 
pain  and  annoyance  without  the  infliction  of  any  physical 
injury.  Such  injuries  to  the  feelings  of  others  are  clearly 
injurious  to  society,  may  be  more  injurious  to  the  person 
attacked  than  physical  violence  to  person  or  property, 
and  ought  to  be  regarded  and  punished  as  crimes.  Such 
an  offense  is  committed  when  a  decent-minded  person 
is  assailed  with  language  that,  though  not  defamatory, 
is  filthy,  profane,  or  otherwise  objectionable  and  painful 
to  hear.  A  religious  person  may  be  more  hurt  by  hear- 
ing blasphemous  language  than  by  a  physical  assault, 
and  from  such  language  has  a  right  to  be  protected.  In 
primitive  societies,  as  we  have  seen,  religion  is  a1  most 
powerful  social  bond,  and  to  undermine  religious  belief 
or  to  attack  religion  in  any  way  is  to  such  societies  highly 
injurious,  and  therefore  a  high  crime.  In  more  devel- 
oped societies,  such  as  our  own,  the  binding  force  of 
religion  is  relaxed,  and  is  no  longer  needed,  for  its  place 
is  taken  by  other  bonds;  and  as  this  change  takes  place, 
attacks  upon  religion  cease  to  be  crimes  as  such.  But 
they  nevertheless  continue  to  be  crimes  for  another  rea- 
son if  they  are  conducted  intemperately,  with  contumely 
and  scurrility.  They  are  now  crimes  because  they  violate 
the  cardinal  social  principle  of  mutual  forbearance;  be- 
cause they  are  of  the  nature  of  verbal  assaults  and  in- 
juries; because  they  inflict  pain  needlessly,  and  without 


154  CRIME  AND  CRIMINALS 

compensating  advantage;  because  they  provoke  to  in- 
ternecine strife  within  the  society. 

Offenses  for  Personal  Security 

These  form  a  small  and  very  miscellaneous  class  of 
offenses,  having  nothing  in  common  but  the  motive  on 
which  they  are  committed,  this  motive  being  to  ward 
off  or  counteract  some  kind  of  danger  that  the  criminal 
has  incurred.  They  range  from  injuring  another  per- 
son's cloak  by  putting  out  with  it  a  fire  that  is  burning 
one's  own  clothes,  to  murdering  a  hostile  witness  in  order 
to  suppress  his  evidence.  Though  very  various,  they 
are  so  infrequent  that  a  brief  notice  of  them  will  suffice. 

Offenses  of  this  nature  may  be  divided  in  the  same 
way  as  those  of  the  previous  class,  according  as  they 
are  injurious  to  the  person,  the  liberty,  the  property,  or 
the  reputation  of  the  victim;  and  it  is  evident  that  their 
turpitude  will  depend  on  the  proportion  that  the  gravity 
of  the  threatening  danger  bears  to  that  of  the  injury 
inflicted.  A  is  locked  up  in  a  house  by  B,  who  intends, 
as  A  knows,  to  murder  him.  In  order  to  escape,  A 
smashes  one  of  B's  windows,  thereby  damaging  for  his 
own  security  the  property  of  another.  Few  would 
ascribe  any  turpitude  to  the  act.  B,  who  has  committed 
a  murder,  is  afraid  that  C,  his  accomplice,  is  about  to 
turn  King's  evidence,  and  to  save  his  own  skin  murders 
C.  B's  act  is  one  of  considerable  turpitude.  A,  being 
afraid  that  he  will  catch  cold,  sets  light  to  B's  corn-stack 
to  warm  himself.  Again  the  act  is  one  of  considerable 
turpitude;  and  if  to  secure  himself  from  the  same  risk 
he  fires  B's  house  and  so  causes  the  death  of  Mrs.  B  and 
her  children,  his  turpitude  is  raised  to  the  maximum. 
If  two  shipwrecked  men  hang  on  to  the  sa:ne  plank, 


PRIVATE  CRIMES  155 

which  is  capable  of  saving  only  one,  What  course  ought 
either  of  them  to  take?  If  he  lets  go,  he  commits  suicide. 
If  he  pushes  the  other  off,  he  commits  murder.  If  he 
does  nothing,  both  perish.  The  case  is  not  wholly  im- 
aginary: however,  my  task  is  not  to  set  problems  in 
ethics,  but  to  determine  what  are  and  what  are  not 
crimes. 

Crimes  of  the  class  now  under  consideration  are  rare, 
for  .the  reason  that  the  occasions  that  render  them  pos- 
sible are  not  frequent.  It  does  not  often  happen  that 
a  person  is  in  such  a  position  that  he  is  tempted  to 
secure  his  own  safety  by  injuring  another  in  person,  prop- 
erty, or  reputation.  The  occasions  for  the  first  sub- 
class are  usually  occasions  of  terrible  and  urgent  danger, 
in  which  the  temptation  is  manifest  and  strong;  as,  for 
instance,  in  the  panic  of  fire,  shipwreck,  and  other  com- 
mon disasters,  when  one  person  seizes  the  opportunity 
of  escape  by  sacrificing  the  chances  of  others — by  tramp- 
ling them  down,  shoving  them  aside,  monopolizing  the 
means  of  escape,  or  otherwise  sacrificing  them  to  his  own 
security.  Whether  it  is  a  penal  offense  for  one  Alpine 
climber  to  sever  the  rope  that  binds  him  to  his  compan- 
ions, so  that  by  sacrificing  their  lives  he  may  save  his 
own,  I  do  not  know;  but  in  the  code  of  ethics  of  Alpine 
climbing  it  is  the  unpardonable  sin;  and,  whether  or  not 
it  is  a  crime  in  law,  it  is  certainly  the  worst  of  crimes  in 
the  eyes  of  those  who  are  interested  in  Alpine  climbing. 

Of  all  offenses,  whether  so  regarded  in  law  or  not, 
perhaps  the  worst  is  to  act  in  such  a  way  as  to  divert 
Suspicion  for  a  crime  of  one's  own  commission  on  to 
the  shoulders  of  an  innocent  person,  or  even  to  allow, 
as  Charles  Peace  did,  innocent  men  to  be  convicted  of  a 
crime  that  one  has  oneself  committed. 

Safety  is   sometimes  sought  by  inflicting  injury,   not 


I56  CRIME  AND  CRIMINALS 

upon  the  persons,  but  on  the  property  of  others.  It  is 
seldom  an  act  of  much  turpitude,  for  it  is  seldom  that 
the  damage  inflicted  is  great  in  proportion  to  the  benefit 
gained  by  inflicting  it.  He  who  breaks  up  his  neigh- 
bor's fence  in  order,  by  burning  it,  to  save  himself  from 
perishing  of  cold,  would  be  convicted  of  stealing  rather 
than  of  wilful  damage,  though  the  offense  is  really  of  the 
class  now  under  consideration;  and  if  the  need  were 
urgent,  and  there  were  no  other  means  of  satisfying  it,  the 
crime  would  not  be  of  great  turpitude.  So  of  the  injuring 
of  a  valuable  cloak  or  rug  by  using  it  to  put  out  a  fire, 
the  bursting  of  a  lock  in  order  to  escape  from  a  burning 
house,  and  so  forth. 

Inflicting  damage  on  another  person's  reputation  in 
order  to  spare  oneself  is  a  rare  crime,  and  I  know  of  no 
instance  except  that  of  bringing  a  false  accusation  for 
this  purpose — a  crime  that  has  been  committed,  as  by 
Jonathan  Wild,  for  instance,  but  that  is  certainly  very 
rare. 

Offenses  committed  for  Gain 

The  next  class  of  offenses  consists  of  those  that  are 
committed  from  the  motive  of  gain — that  is  to  say,  it 
consists  of  acts  by  which  the  offender  seeks  to  add  to 
his  own  property  by  injuring  others.  Crimes  of  this 
class  are  by  far  the  most  frequent  of  all,  and  are  also 
the  most  diversified.  They  constitute  no  less  than  94 
per  cent,  of  the  total  number  of  crimes  committed  in 
this  country,  and  range  in  elaborateness  from  simple 
highway  robbery  to  the  most  ingenious  and  complicated 
systems  of  fraud;  in  magnitude  from  petty  larceny  to 
the  dishonest  acquirement  of  millions;  and  in  turpitude 
from  a  merely  nominal  wrong  to  the  blackest  and  most 
hideous  breaches  of  trust. 


PRIVATE  CRIMES  157 

That  peculiar  reciprocal  relation  of  things  and  persons 
that  we  denominate  property  and  ownership  is  very 
deeply  rooted  in  human  nature,  and  is  even  shared  with 
man  by  many  of  the  lower  animals.  It  is  highly  de- 
veloped in  the  dog,  which  resents  and  actively  resists 
any  attempt  of  a  stranger  to  appropriate  property  that 
the  dog  regards  as  his  own,  or  is  accustomed  to  associate 
with  his  master.  The  proverbial  difficulty  of  taking 
butter  out  of  a  wolf's  throat  is  but  an  exaggerated'  in- 
stance of  the  tenacity  with  which  every  raptorial  animal 
will  cling  to  its  own  prey  as  its,  own  property.  The  re- 
sentment that  social  bees  and  wasps  display  at  any  dis- 
turbance of  their  nest,  any  intrusion  into  it,  or  any  raid 
upon  their  stores,  is  a  collateral  instance  of  the  apprecia- 
tion of  the  same  relation.  It  is  well  known  that  social 
bees  will  raid  the  hives  of  their  neighbors,  and  that  the 
raids  are  resented  and  resisted  to  the  utmost,  and  even 
to  death,  and  not  seldom  lead  to  the  utter  depopulation 
of  the  raided  hive.  Such  incidents  are,  it  is  true,  rather 
of  the  nature  of  public  war  than  of  private  dishonesty; 
but  still,  they  illustrate  the  principle  of  ownership,  though 
of  collective  ownership.  The  instinctive  appreciation  of 
property  goes  much  farther  than  this,  however;  and  it 
is  interesting,  at  a  time  when  doctrinaires  are  teaching 
that  private  ownership  of  every  commodity,  but  especi- 
ally of  land,  is  unjustifiable,  to  note  that  appropriation 
of  territory  is  a  very  widespread  instinct  among  the 
lower  animals.  The  strict  territorial  limitation  of  every 
pack  of  the  semi-wild  dogs  of  Constantinople  is  well 
authenticated.  Every  dog  enjoys  peace  within  the  dis- 
trict of  its  own  pack,  but  an  intruder  from  a  neighbor- 
ing district  is  instantly  set  upon  and  murdered  by  the 
denizens  of  the  invaded  district.  A  widely  different 
animal  is  the  familiar  robin  of  our  own  gardens,  and 


158  CRIME  AND  CRIMINALS 

every  robin,  or  pair  of  robins,  has  its  own  peculiar  ter- 
ritory, and  attacks  with  fury  a  stranger  robin  that  ven- 
tures to  trespass  therein. 

Property  is  of  three  kinds,  and  consists  of  services,  of 
things  or  commodities,  and  of  the  use  of  things.  A 
man's  labor,  his  skill,  and  his  time  are  his  property. 
They  are  his  own,  to  dispose  of  as  he  pleases,  due  regard 
being  paid  to  the  rights  of  others  and  of  the  society  to 
which  he  belongs.  Subject  to  these  limitations,  he  may 
dispose  of  them  as  he  will,  and  may  exchange  them  for 
whatever  he  may  agree  to  take  as  their  equivalent  in 
value.  This  was  not  always  so,  and  is  not  even  now 
universally  so.  In  former  times,  slavery  existed  in  every 
society,  and  from  some  highly  developed  societies  it  has 
been  abolished  only  of  recent  years  and  in  the  memory 
of  many  now  living;  but  it  is  now  generally  recognized 
that  a  man's  labor,  skill,  and  time,  which  together  make 
up  his  services,  are  his  own  until  he  agrees  to  sell  such 
part  of  them  as  he  chooses.  He  cannot  sell  them  all. 
He  cannot  sell  himself  into  slavery;  but  he  can  forfeit 
them  by  evil  doing,  and  he  owes  them  all  to  the  State  if 
the  State  has  need  of  them  to  preserve  its  existence. 
The  nearest  approach  to  slavery  that  now  exists  in 
civilized  States  is  service  in  the  fighting  forces. 

Services  are  the  basis  of  all  property.  The  unappro- 
priated resources  of  nature  are  free  to  all  until  they  are 
appropriated;  and  they  cannot  be  appropriated  except 
by  the  expenditure  of  labor,  skill,  and  time.  The  expen- 
diture of  labor,  skill,  and  time  upon  them  converts  them 
into  property.  Unexplored  land  is  not  property.  It 
may  be  territory — the  territory  of  the  State  that  extends 
its  jurisdiction  over  the  land;  but  it  is  not  property  until 
services  have  been  expended  upon  it.  How  much  service 
is  required  to  convert  the  territory  of  the  State  into  the 


PRIVATE  CRIMES  159 

property  of  individual  members  of  the  State  is  for  the 
State  to  determine;  but  there  is  no  property  until  some 
service,  if  only  that  of  delimitation,  of  some  minimum  of 
cultivation,  or  even  of  exploration,  has  been  expended 
upon  it.  A  natural  object,  a  stick  or  a  stone,  a  shell  or 
a  gem,  a  fruit  or  a  flint,  is  not  property  as  it  lies  or  grows, 
unless  it  has  been  appropriated  as  an  appendage  of  the 
land  that  bears  it.  The  unappropriated  produce  of  un- 
apprppriated  land  is  not  property  until  service  is  expended 
on  it.  But  as  soon  as  service  is  expended  on  it,  even  if  it 
be  only  the  time  and  labor  necessary  to  gather  it,  it  be- 
comes the  property  of  the  person  who  expends  the  service. 
This  is  primitive  law,  universally  recognized  and 
admitted. 

The  second  kind  of  property  consists,  therefore,  of 
that  upon  which  service  has  been  expended.  It  may  be 
a  portable  object,  or  it  may  be  a  house,  or  land,  or  water, 
or  any  material  thing.  It  need  not  even  be  material. 
All  that  is  necessary  is  that  service  of  some  kind  shall 
have  been  expended  on  it.  It  may  be  immaterial:  it 
may  be  water  power  or  electricity. 

Little  objection  will  be  made,  I  think,  to  the  constitu- 
tion of  the  two  kinds  of  property  thus  defined;  but  I 
would  constitute  a  third  kind  of  property,  a  kind  that  is 
not  yet  recognized,  but  that  it  is  very  important  to  rec- 
ognize, since  its  recognition  would  distinguish  a  new 
class  of  offenses  from  others  with  which  it  has  hitherto 
been  confused,  and  no  little  injustice  is  produced  thereby. 
This  kind  of  property  consists  neither  in  services  nor 
in  things  on  which  service  has  been  expended,  but  in  the 
use  of  things.  The  use  of  things  is  quite  explicitly  rec- 
ognized for  some  purposes  as  a  distinct  kind  of  prop- 
erty, but  it  is  recognized  for  some  purposes  only.  The 
use  of  a  thing  can  be  bought  and  sold,  though  we  do  not 


160  CRIME  AND  CRIMINALS 

commonly  speak  of  the  transaction  as  buying  and  selling. 
We  call  it  hiring  or  renting;  but  when  a  house,  or  land, 
or  a  factory  is  rented,  or  a  horse,  or  vehicle,  or  boat  is 
hired,  what  actually  takes  place  is  that  the  use  of  the 
thing  for  a  certain  length  of  time  is  bought.  This  is  the 
true  nature  of  the  transaction,  but  we  are  so  much  the 
slaves  of  words  that  when  we  call  a  thing  by  another 
name  we  take  for  granted  that  it  has  another  nature. 
The  use  of  a  thing  is  as  truly  property  as  the  thing  itself, 
and  this  doctrine  has  the  very  important  consequence, 
which  has  been  entirely  overlooked  hitherto,  that  the 
use  of  a  thing,  no  less  than  the  thing  itself,  can  be  not 
only  bought  and  sold,  which  every  one  admits,  but  also 
can  be  stolen,  which  is  a  new  and  unfamiliar  concept, 
and,  as  it  is  unfamiliar,  will  be  admitted  with  reluctance. 
Its  non-recognition  is  a  serious  defect  in  the  law.  I  as- 
sert, and  the  assertion  seems  to  me  incontestable,  that 
what  can  be  bought  and  sold  can  be  stolen. 

Property  may  be  acquired  from  two  sources — from 
the  unappropriated  bounty  of  nature,  or  by  transfer  from 
other  people.  The  first  is  the  ultimate  source  of  all  prop- 
erty; but  in  the  complex  and  sophisticated  organization 
of  civilized  societies,  but  little  is  directly  acquired  in  this 
way.  In  civilized  countries,  most  things,  including  the 
hitherto  undeveloped  resources  of  the  earth,  are  already 
appropriated;  and  almost  all  the  property  of  the  second 
kind — property  in  things — is  primarily  acquired  from 
other  people,  and  passed  on,  after  services  have  been 
expended  on  it  and  its  value  has  thus  been  increased,  to 
yet  other  people. 

The  means  by  which  property  is  honestly  acquired 
from  other  people  are  two.  It  may  be  received  as  a 
free  gift,  or  other  property  may  be  exchanged  for  it. 
There  is  no  other  way.  In  every  transfer  of  property 


PRIVATE  CRIMES  161 

there  must  be  two  parties;  and  in  every  transfer  that  is 
not  a  free  gift,  each  party  gives  something  and  receives 
something:  each  acts  in  the  double  capacity  of  trans- 
feror and  transferee.  The  two  capacities  or  functions 
are  very  different,  and  the  transaction  has  a  very  differ- 
ent aspect  according  as  it  is  viewed  from  the  one  stand- 
point or  the  other. 

Looking  at  the  matter  first  of  all  from  the  side  of  the 
transferor,  the  conditions  of  valid  transfer  from  him  are 
that  he  who  parts  with  his  property,  whether  by  gift, 
loan,  sale,  or  exchange,  must  part  with  it  knowingly,  of 
his  own  free  will,  with  his  full  consent,  and  with  a  clear 
understanding  of  the  circumstances  in  which  he  parts 
with  it.  If  any  of  these  conditions  is  any  way  infringed, 
the  transaction  is  vitiated;  and  if  the  infringement  is 
in  the  knowledge  of  the  transferee,  the  transfer  is  dis- 
honest, and  the  transferee  commits  an  offense — not  ne- 
cessarily an  offense  against  the  law  as  it  is,  but  certainly 
an  offense  against  the  law  as  it  ought  to  be. 

i.  The  person  who  parts  with  his  property,  or  from 
whom  the  property  goes,  must  part  with  it  knowingly, 
or  the  transfer  is  vitiated,  and  if  the  transferee  is  aware 
of  the  want  of  knowledge  on  the  part  of  the  transferor, 
the  transfer  is  dishonest,  and  the  receiver  commits  an 
offense.  In  other  words,  to  take  property  of  any  kind 
without  the  knowledge  of  the  owner  is  illegal;  and  if  he 
who  takes  it  knows  that  the  owner  is  not  aware  of  the 
taking,  the  action  is  dishonest,  and  both  illegal  and  pun- 
ishable. It  is  an  offense. 

No  doubt  most  people  would  agree  that  the  taking  of 
property  without  the  knowledge  of  the  owner  is  dis- 
honest, and  would  see  no  necessity  for  the  qualification 
I  have  introduced,  that  the  taker  must  know  of  the 
ignorance  of  the  owner;  but  I  shall  show  in  a  moment 


162  CRIME  AND  CRIMINALS 

that  this  qualification  is  necessary.  In  thus  agreeing, 
however,  few  people  would  realize  all  that  they  are 
conceding,  or  that  they  are  in  fact  recognizing  as  crimes 
a  body  of  transactions  that  are  not  usually  so  regarded, 
though  no  doubt  they  ought  to  be. 

The  qualification  is  necessary  for  this  reason:  that  it 
is  quite  possible,  and  is  not  even  infrequent,  for  a  person 
to  take  honestly  the  property  of  another  person  without 
the  knowledge  of  the  owner.  I  do  not  now  refer  to 
purchase  from  an  agent,  such  as  a  shopman  or  manager, 
though  perhaps  this  might  with  strict  verbal  accuracy 
be  considered  to  be  made  without  the  knowledge  of  the 
owner  as  to  the  particular  article  purchased;  but  in  such 
a  case  the  owner  must  be  presumed  to  have  a  general 
knowledge  that  his  agent  is  parting  with  his  property  for 
value.  The  cases  I  am  referring  to  are  those  in  which 
the  owner  has  not  even  a  general  or  constructive  know- 
ledge of  the  transfer  of  his  property,  as  for  instance 
when  I  purchase  from  a  hirer  property  that  he  has  hired, 
but  has  no  title  to  sell,  I  having  no  suspicion  that  the 
hirer  is  not  the  owner.  In  such  a  case  my  purchase  would 
be  invalid,  and  could  not  be  sustained  in  law;  but  it  would 
not  be  dishonest  on  my  part,  though  it  would  be  dishonest 
on  the  part  of  the  hirer. 

Leaving  on  one  side  this  necessary  qualification,  we1 
are  now  to  recur  to  the  triple  definition  of  property. 
Services  can  scarcely  be  received  without  the  knowledge 
of  him  who  gives  them,  though  no  doubt  they  may  be 
received  without  his  full  appreciation  of  their  value ;  but 
this  is  a  different  thing.  Unpunctuality  is  dishonesty:  it 
is  stealing  the  time  of  other  people.  Commodities  may 
be  taken  without  the  knowledge  of  the  owner,  and  are 
constantly  so  taken  by  various  dishonest  methods.  But 
it  will  be  remembered  that  there  is  a  third  form  of  prop- 


PRIVATE  CRIMES  163 

erty,  consisting  of  the  use  of  commodities,  and  this  also 
may  be  taken  dishonestly  without  the  knowledge  of  the 
owner.  As  I  have  already  pointed  out,  the  use  of  a 
thing  is  a  kind  of  property  as  is  already  recognized  in 
familiar  transactions  as  well  as  in  law.  When  a  thing 
is  let  for  hire,  the  use  of  it  for  a  time  is  sold.  When  it 
is  lent  without  reward,  the  use  for  a  time  is  given.  The 
identity  of  hire  with  purchase  is  obscured  by  the  payments 
madiTby  way  of  hire  being  often  periodical;  but  they  are 
not  necessarily  periodical.  The  lease  of  a  house  may  be 
purchased  for  a  lump  sum,  and  then  what  is  purchased 
is  the  use  of  the  house.  The  use  of  a  ship  for  a  specified 
time  is  usually  purchased  by  a  single  payment.  What- 
ever can  be  bought  and  paid  for,  or  in  any  way  ex- 
changed, is  surely  property,  and  in  my  view  the  use  of 
things  is  undoubtedly  property;  and  as  it  can  unquestion- 
ably be  bought  and  sold  and  given,  so  without  doubt  it 
can  be  stolen,  and  in  fact  it  frequently  is  stolen.  Owing, 
however,  to  the  non-recognition  of  the  use  of  things  as  a 
form  of  property,  stealing  the  use  of  things  is  not  looked 
upon  as  theft;  it  is  not  an  offense  in  law,  and  no  penalty 
attaches  to  it  except  when  the  thing  the  use  of  which  is 
stolen  is  money.  The  consequences  of  this  omission  on 
the  part  of  the  law  are  grievous.  They  are,  first,  that 
many  acts  of  abominable  dishonesty  are  not  offenses  in 
law,  are  not  indictable,  and  are  not  punishable;  and 
second,  that  other  acts  of  dishonesty  of  the  same  kind 
and  of  even  less  turpitude  are  punished  with  excessive 
severity. 

If  it  is  an  offense,  as  every  one,  and  even  the  law, 
admits  it  is,  to  use  another  person's  money  without  that 
person's  knowledge,  I  can  see  no  reason  why  it  should 
not  equally  be  an  offense  to  use  without  his  knowledge 
his  manservant  or  his  maidservant,  his  ox  or  his  ass,  or 


164  CRIME  AND  CRIMINALS 

anything  that  is  his.  If  a  chauffeur  takes  his  master's 
motor-car  out  for  his  own  pleasure  or  business,  or  to 
drive  his  own  friends,  without  his  master's  knowledge, 
this  is,  in  my  opinion,  and  in  my  definition  of  property, 
stealing.  He  steals  the  use  of  his  master's  car.  It  is  no 
argument  against  this  view  to  contend  that,  as  he  returns 
the  car,  he  steals  nothing.  It  might  equally  be  con- 
tended that  the  clerk  who  borrows  his  employer's  money 
and  repays  it  before  the  theft  is  discovered  steals  nothing. 
It  is  true  that  he  has  not  stolen  money,  but  he  has  stolen 
the  use  of  money.  If,  however,  the  deficiency  is  dis- 
covered before  he  has  returned  the  money,  he  can  be 
prosecuted;  but  he  is  prosecuted,  and  usually  convicted, 
for  an  offense  that  he  has  never  committed.  He  is  prose- 
cuted for  stealing  the  money,  which  he  did  not  steal  and 
had  no  intention  of  stealing.  He  is  not  prosecuted  for 
stealing  the  use  of  the  money,  which  was  his  actual  of- 
fense. It  must  be  remembered  that  the  chauffeur  who 
steals  the  use  of  his  master's  car  does  not  always  return 
the  car.  It  has  happened  that  on  his  joy  ride  he  has 
run  the  car  against  a  lamp-post  or  met  with  some  other 
accident  far  from  home,  and  he  has  thereupon  left  the 
car  and  absconded.  Wherein  does  he  differ  from  the 
youth  who  has  failed  to  return  the  money  whose  use  he 
has  borrowed  and  who,  finding  himself  unable  to  return 
it,  absconds?  Yet  the  clerk  is  punished  with  great 
severity:  the  chauffeur  cannot  be  punished  at  all.  He 
has  committed  no  offense  known  to  the  law.  A  lady  of 
fashion  asked  for  a  valuable  diamond  necklace  to  be 
sent  to  her  on  approval.  It  was  so  sent,  and  she  wore 
it  at  a  reception;  and  on  its  return  it  was  found  to  be 
powdered  with  poudre-de-riz.  This  lady  stole  the  use 
of  the  necklace  as  truly  as  the  chauffeur  stole  the  use  of 
his  master's  car,  as  the  clerk  stole  the  use  of  his  employ- 


PRIVATE  CRIMES  165 

er's  money,  or  as  the  lady's-maid  stole  the  use  of  her 
mistress's  boots  and  sunshade  when  she  went  out  with 
them  on  her  own  person ;  and  it  is  clearly  unjust  that  one 
person  should  be  punished  severely  for  a  crime  while 
others  should  not  be  punishable  at  all  for  crimes  of  the 
same  character. 

When  a  person  steals  the  use  of  a  thing,  he  often  ends 
by  stealing  the  thing  itself;  but  this  only  illustrates  the 
familiar  truth  that  one  crime  leads  to  another — it  does 
not  suffice  to  identify  the  two  crimes.  Stealing  the  use 
of  a  thing  is  distinguished  from  stealing  the  thing  itself, 
not  by  the  fact  that  in  the  former  case  he  returns  the 
thing  and  in  the  latter  he  does  not,  but  by  the  intention 
to  return  it,  which  is  present  when  he  steals  the  use  and 
absent  when  he  steals  the  thing.  In  either  case  his  in- 
tention may  subsequently  alter;  but  whatever  the  subse- 
quent alteration,  the  nature  of  the  crime,  as  with  other 
crimes,  is  determined  by  the  intention  in  the  mind  of  the 
criminal  at  the  time  the  crime  was  committed.  If  the 
clerk  takes  the  money,  intending  at  the  time  to  return  it, 
he  steals  only  the  use  of  it;  and  if  he  subsequently  re- 
turns it,  he  has  still  committed  this  offense.  But  if  he 
finds  that  he  cannot  return  it,  and  subsequently  to  the 
taking  alters  his  intention  and  makes  up  his  mind  to  con- 
vert it  altogether  to  his  own  use,  then  from  that  moment 
he  has  stolen  more  than  the  use — he  has  stolen  the  money 
itself.  If,  on  the  other  hand,  he  takes  the  money  with 
the  intention  of  stealing  it  out  and  out,  and  subsequently 
repents  and  replaces  the  money,  he  has  stolen  it,  and 
during  the  time  it  was  in  his  possession  has  deprived  its 
owner  of  the  use  of  it,  and  for  this  he  may  rightly  be 
punished;  but  he  has  not  stolen  the  use  of  the  money, 
for  this  was  not  his  intention  at  the  time  the  act  was  com- 
mitted. And  what  is  true  of  money  and  of  the  use  of 


i66  CRIME  AND  CRIMINALS 

money  is  true  of  every  other  commodity  and  its  use. 
Either  the  thing  or  the  use  of  it  can  be  stolen,  and  the 
two  offenses  are  different;  but  both  of  them  are  offenses, 
and  both  should  be  recognized  as  such  by  the  law. 

No  doubt  it  is  more  difficult  in  the  case  of  money  than 
in  the  case  of  other  things  to  prove  the  intention,  especi- 
ally the  less  grave  intention;  but  there  is  no  reason  why 
the  accused  should  not  be  allowed  to  plead  the  minor 
offense,  and  establish  his  plea  if  he  can.  It  is  often  diffi- 
cult to  prove  intention;  but  in  all  grave  crimes  it  must 
be  proved.  It  is  often  difficult  in  the  case  of  homicide 
to  prove  the  intention  was  not  murder;  but  the  prisoner 
is  allowed  to  plead  that  it  amounted  only  to  manslaugh- 
ter, and  to  establish  the  defense  if  he  can. 

As  has  already  been  said,  to  take  a  thing  without  the 
knowledge  of  the  owner  is  not  necessarily  stealing.  It 
is  not  stealing  unless  the  taker  knows  that  the  owner  is 
unaware  of  the  transfer.  But  for  this  proviso,  an  honest 
mistake  would  be  a  theft  If  I  take  from  my  club  an 
umbrella  resembling  my  own,  in  the  mistaken  belief  that 
it  is  mine,  I  am  taking  another's  property  without  his 
knowledge;  but  as  I  do  not  know  that  he  is  ignorant, 
I  am  not  stealing.  In  fact,  I  do  not  even  myself  know 
that  I  am  taking  his  property. 

In  order  that  the  transfer  of  property  may  be  honest, 
the  transferor  must  know  of  it;  but  this  is  not  enough. 
He  must  know,  not  only  that  he  is  parting  with  his  prop- 
erty, but  he  must  know,  in  the  full  sense  of  knowing,  all 
that  he  is  doing.  A  man  may  know  that  he  is  parting 
with  his  property  and  receiving  property  in  exchange, 
and  yet  be  incapacitated  by  obscuration  of  mind  from 
fully  appreciating  the  nature  of  the  transaction,  and  from 
judging  of  its  expediency  as  a  whole.  This  is  the  case 
when  a  bargain  is  made  with  a  man  whose  faculties  are 


PRIVATE  CRIMES  167 

obscured  by  drink,  or  by  insanity  otherwise  produced. 
Such  bargains  may  be  annulled  by  a  tedious  and  expen- 
sive legal  process,  but  no  punishment  is  provided  for  the 
peculiarly  mean  and  disgraceful  dishonesty  of  wilfully 
taking  advantage  of  a  drunken  man  or  a  man  who  is 
otherwise  mad,  by  inducing  him  to  enter  into  a  bargain 
that,  but  for  his  madness,  he  would  never  have  con- 
sented to.  For  this  dishonesty  the  perpetrator  ought  to 
be^-criminally  liable.  I  can  see  no  material  difference 
between  him  who  takes  advantage  of  the  natural  simp- 
licity and  ignorance  of  a  yokel  to  swindle  him  by  means 
of  the  confidence  trick,  or  the  gold-brick  swindle,  or  the 
Spanish-prisoner  swindle,  and  him  who  knowingly  takes 
advantage  of  the  drunken  man  or  the  lunatic  to  induce 
Mm  to  part  with  property  that,  if  sober  and  sane,  he 
would  not  have  parted  with  on  the  same  terms.  If  there 
is  any  difference  in  turpitude,  that  seems  to  me  the 
greater  which  swindles  the  drunkard  or  the  lunatic. 
Yet  these  transactions  are  not  criminal  in  the  eye  of  the 
law,  and  are  not,  in  this  country  at  least,  legally  punish- 
able. This  seems  to  me  another  defect  in  the  English 
jurisprudence  of  crime.  Such  dishonest  transactions  may 
not  be  frequent,  but,  if  I  may  judge  by  those  that  have 
come  under  my  own  observation,  they  are  not  extremely 
rare,  and  assuredly  there  are  others  of  which  the  law 
does  take  cognizance  that  are  rarer  still. 

2.  In  order  that  the  transfer  of  property  may  be 
honest,  the  transferor  must  not  only  know,  in  the  full 
sense  of  knowing,  that  he  is  transferring  to  another,  but 
he  must  consent  to  the  transfer.  The  man  who  is  bound 
hand  and  foot  by  robbers  may  see  his  trunks  rifled,  and 
may  have  a  complete  knowledge  of  the  property  trans- 
ferred from  his  possession,  and  of  the  mode  and  circum- 
stances of  the  transfer;  but  as  he  does  not  consent  to  the 


i68  CRIME  AND  CRIMINALS 

transfer,  it  is  not  legally  valid;  and  as  the  transferees 
know  that  he  does  not  consent,  the  transfer  is  not  only 
invalid  but  dishonest.  So,  any  transfer  of  property  with- 
out the  consent  of  the  owner  is  invalid,  and  may  be  set 
aside ;  but  it  is  not  necessarily  dishonest  unless  the  trans- 
feree knows  that  the  owner  does  not  consent.  If  he  who 
takes  the  property  knows  that  the  owner  does  not  consent 
to  the  transfer,  then  the  transaction  is  dishonest;  with 
the  proviso,  however,  that  the  honesty  of  the  transaction 
is  not  impaired  by  the  withdrawal  of  a  consent  once 
freely  and  formally  given.  The  man  who  has  once  will- 
ingly signed  a  contract  of  purchase  and  sale  cannot  subse- 
quently repudiate  it.  He  must  hold  to  his  bargain,  and 
deliver  the  goods,  or  pay  the  money,  whichever  he  has 
contracted  to  do. 

3.  But  knowledge  and  consent,  even  in  combination, 
are  not  by  themselves  enough  to  validate  a  transfer  or 
to  render  it  honest.  Though  the  transferor  knows,  in  the 
full  sense  of  knowing,  all  that  he  is  doing  and  the  nature 
of  the  transaction,  and  though  he  gives  his  full  consent 
to  it,  yet  the  transfer  may  be  tainted  with  the  grossest 
dishonesty  if  it  is  effected  without  his  free  will.  If  a 
highway  robber  holds  a  pistol  to  my  head  and  demands 
my  purse,  I  may  know  perfectly  well  what  I  am  doing 
when  I  hand  it  to  him,  and  I  may  fully  consent  to  his 
taking  it;  but  nevertheless  the  transfer  is  not  honest. 
The  taking  of  the  property  is  dishonest,  and  is  dishonest 
because,  though  I  know  of  it  and  consent  to  it,  I  do  not 
consent  of  my  own  free  will.  I  am  constrained;  and 
constraint  destroys  the  honesty  of  the  transaction. 

Extortion  by  threats  is  an  offense  well  known  to  the 
law,  and  punishable.  Extortion  by  threats  of  violence 
becomes,  with  robbery  itself,  less  and  less  frequent  as 
time  goes  on,  society  becomes  moralized,  and  order  is 


PRIVATE  CRIMES  169 

more  securely  kept;  but  threats  of  violence  are  not  the 
only  threats  by  which  property  may  be  extorted.  Black- 
mail or  threats  to  expose  something  discreditable  that 
the  victim  may  or  may  not  have  done,  is  one  of  the  most 
hideous  offenses  known  to  the  law,  and  is  far  from  in- 
frequent. 

Such  modes  of  extortion  practised  upon  persons  of 
average  strength  of  mind  are  gross  and  brutal;  but  there 
ar6  subtler  modes,  practised  upon  persons  of  weaker 
mind,  more  timorous,  and  of  less  than  normal  strength 
of  character.  These  modes  are  in  practice  difficult  to 
bring  home  to  the  perpetrator,  and,  when  they  are 
brought  home  to  him,  the  worst  that  happens  to  him  is 
that  he  is  made  to  disgorge  his  plunder.  He  is  not 
criminally  punished,  though  his  conduct  is  as  dishonest 
and  as  extortionate  as  that  of  the  footpad  who  threatens 
with  uplifted  bludgeon.  The  person  threatened  is  often 
in  weak  bodily  as  well  as  mental  health;  his  energies 
and  mental  fortitude  are  impaired  by  exhausting  illness, 
or  by  old  age;  or  often  he  has  been  from  birth  a  feeble 
creature,  weak  of  will  and  without  force  of  character, 
easily  dominated  by  a  stronger  character  and  will.  Such 
persons  are  susceptible  to  the  influence  of  threats  much 
milder  than  those  of  bodily  injury  or  discreditable  expos- 
ure. It  is  enough  to  threaten  them,  openly  or  covertly, 
with  loss  of  physical  comfort  or  moral  support,  with  de- 
sertion and  loss  of  services,  with  displeasure  and  disap- 
proval, to  induce  them  to  part  with  property,  to  transfer 
it  with  knowledge  and  consent,  but  not  with  free  will. 

In  this  case  again  the  criminal  law  seems  to  me  to 
shirk  its  proper  function.  If  it  is  criminal  to  deprive  the 
person  of  property  by  threats  of  one  kind,  surely  it  is 
criminal,  though  perhaps  not  equally  criminal,  to  deprive 
him  of  his  property  by  threats  of  another  kind,  open  or 


i7o  CRIME  AND  CRIMINALS 

covert.  No  doubt  it  would  be  difficult  in  many  cases  to 
prove  the  use  of  threats,  but  so  it  is  difficult  in  many 
cases  to  prove  intention  and  other  ingredients  in  crime. 
Nevertheless,  they  are  proved,  and  criminals  are  pun- 
ished for  them. 

The  law  of  England,  in  its  distinctions  between  acts 
that  are  criminal  and  acts  that  afford  ground  for  civil 
proceedings  only,  is  illogical  and  unreasonable.  In  its 
earlier  stages,  the  law  of  this  country  was  purely  litigious, 
and  is  still  litigious  in  principle  and  framework.  Origin- 
ally, even  murder  was  regarded  merely  as  affording 
ground  for  an  action  for  damages,  and  the  action  was 
prosecuted,  not  by  the  State,  but  by  the  family  of  the 
victim,  to  whom  was  paid  the  pecuniary  penalty  or  wer- 
geld.  No  punishment  could  be  inflicted  upon  the  murd- 
erer unless  he  failed  to  pay  the  pecuniary  compensation. 
Even  to  this  day  the  prosecution  of  offenders  of  every 
grade  lies  primarily  with  the  injured  party,  though  in 
serious  cases  the  Crown  takes  over  the  prosecution. 
Even  to  this  day  the  form  of  all  criminal  proceedings  is 
litigious,  is  that  of  an  action  between  parties,  even  if  one 
party  is  the  Crown;  and  is  never  inquisitorial,  as  it  is  in 
countries  that  have  derived  their  law  from  the  Romans. 
Only  gradually  were  crimes  discriminated  from  civil 
wrongs,  and  even  now  the  discrimination  is  incomplete 
and  faulty.  There  still  remains  a  number  of  injurious 
acts,  discriminated  on  no  principle  from  criminal  offenses, 
but  not  regarded  in  law  as  criminal,  and  with  respect  to 
which  the  injured  party  is  left  to  his  civil  remedy  for 
damages.  It  is  curious  that  though  the  criminal  law  is 
constantly  being  extended,  so  that,  every  year  acts  that 
were  previously  passed  unnoticed  by  the  law  are  rendered 
criminal,  the  extension  is  always  to  acts  that  had  not  pre- 


PRIVATE  CRIMES  171 

viously  any  remedy  in  civil  proceedings,  never  to  acts  for 
which  there  is  such  remedy.  Such  acts  or  omissions  as 
letting  a  child  go  unvaccinated  or  a  dog  unmuzzled,  as 
driving  after  dark  without  a  light,  or  riding  in  a  public 
vehicle  while  suffering  from  infectious  disease,  for  which 
no  action  for  damages  could  lie,  are  made  penal;  but 
such  acts  as  breach  of  contract  or  false  imprisonment, 
which  are  criminal  in  their  nature,  since  they  seek  selfish 
advantage  by  injuring  others,  are  left  without  the  stigma 
of  criminality,  to  be  remedied  by  civil  actions  for  dam- 
ages. Whether  the  process  of  criminalizing  wrong  acts 
that  are  now  remediable  only  by  civil  proceedings  will 
ever  be  resumed  is  doubtful.  English  law  and  the  Eng- 
lish character  have  little  leaning  towards  logical  com- 
pleteness or  systematic  order,  but  rather  prefer  hand-to- 
mouth  remedies  as  occasion  arises;  but  meantime,  the 
exclusion  of  false  imprisonment  and  breach  of  contract 
from  criminal  offenses  is  a  blemish  in  English  juris- 
prudence. 

4.  The  last  condition  of  the  honest  transfer  of  prop- 
erty is  that  the  owner  must  have  a  clear  understanding 
of  the  circumstances  in  which  he  parts  with  it;  and  the 
term  "  circumstances "  must  receive  a  wide  interpreta- 
tion. He  must  be  under  no  singular  misapprehension — 
that  is  to  say,  no  misapprehension  unshared  by  the  trans- 
feree— as  to  the  nature  or  amount  of  the  property  he 
parts  with,  or  as  to  the  nature  or  amount  that  he 
receives  in  exchange.  He  must  be  under  no  singular 
misapprehension  as  to  the  time,  place,  or  circumstances 
in  which  the  property  is  transferred  or  as  to  the  person 
or  persons  to  whom  it  is  transferred.  In  short,  any  con- 
cealment or  deception  on  the  part  of  the  transferee,  in 
respect  to  any  circumstance  material  to  the  bargain,  viti- 


172  CRIME  AND  CRIMINALS 

ates  the  transaction,  and  should  render  it  not  only  void- 
able but  void,  and  moreover  should  render  the  deceiver 
liable  to  criminal  proceedings. 

Concealment  or  deception  as  to  the  nature  of  the  prop- 
erty transferred  is  frequent,  and  may  be  practiced 
either  by  the  seller  or  by  the  buyer.  When  practiced  by 
the  seller,  it  constitutes  the  offenses  of  substitution,  adul- 
teration, and  breach  of  warranty.  The  last  is  not  an  of- 
fense in  law,  but  of  course  it  should  be  one,  since  it 
differs  in  no  material  respect  from  adulteration.  Fraud 
of  the  same  character  is  frequently  committed  in  company- ' 
promoting,  when  the  thing  sold  is  very  different  from  the 
description.  Fraud  of  the  same  kind  is  perpetrated  when 
a  person  undertakes  to  sell  services  requiring  skill  or 
knowledge  that  he  does  not  possess  or  does  not  exercise, 
or  that  require  care  or  attention  that  he  neglects  to  give; 
or  again,  when  he  hires  a  thing  for  one  purpose  and  ap- 
plies it  to  a  different,  perhaps  criminal,  purpose. 

Concealment  or  deception  with  respect  to  the  nature 
of  the  thing  bought  may  be  practiced  not  only  by  the 
seller,  but  also  by  the  buyer,  though  no  doubt  fraud  of 
this  kind  *on  the  part  of  the  buyer  is  very  much  more 
rare.  As  the  property  to  be  transferred  is  usually  in  the 
possession  of  the  vendor,  he  must  be  presumed  to  know 
more  about  it  than  the  purchaser;  but  he  does  not  always 
know  more  about  it.  Sometimes  the  purchaser  possesses 
knowledge  that  he  sedulously  conceals  from  the  vendor. 
Cases  have  occurred  in  which  the  fact  that  land  con- 
tained valuable  minerals  was  known  to  the  purchaser 
and  concealed  from  the  vendor,  who  let  the  land  go  as 
agricultural  land.  So,  too,  experts  have  bought  valuable 
pictures  at  rubbish  prices,  concealing  their  value  from 
the  vendor.  Such  transactions  are  not  criminal  on  the 
gart  of  the  purchaser,  nor  are  they  even  voidable;  but 


PRIVATE  CRIMES  173 

they  are  tainted  with  dishonesty — a  mitigated  and  atten- 
uated dishonesty,  it  is  true,  but  they  are  not  wholly  free 
from  the  taint  of  fraud. 

Concealment  or  deception  as  to  the  quantity  of  the 
thing  transferred  is  a  frequent  form  of  dishonesty,  and 
constitutes  the  fraud  of  false  weights  and  false  measures, 
false  statements  of  the  amount  of  work  done  or  of  ser- 
vice rendered,  and  is  effected  by  falsification  of  accounts 
in  m^ny  ways. 

Of  the  other  circumstances  that  may  be  concealed,  or 
with  respect  to  which  deception  may  be  practiced  by 
either  the  vendor  or  the  purchaser,  perhaps  the  most 
important  is  the  amount  of  uncertainty  or  risk  that  the 
quid  pro  quo  will  be  forthcoming  in  full  measure  at  the 
time  agreed  upon.  Such  concealment  or  deception  mani- 
festly vitiates  the  honesty  of  the  transaction,  and  should 
be  punishable.  It  is  seldom,  however,  that  they  are  so 
regarded  in  law,  and  it  is  only  recently  that  some  of  the 
worst  of  them,  perpetrated  by  the  promoters  of  com- 
panies, have  been  made  remediable  even  by  civil  pro- 
ceedings. 

Another  circumstance  attending  the  transfer  of  prop- 
erty is  the  personality  of  the  transferee,  and  as  to  this 
the  transferor  is  sometimes  kept  in  the  dark  and  de- 
ceived. The  leading  case  is  that  of  Jacob  and  Isaac,  and 
it  has  been  paralleled  by  many  casesi  since.  Arthur 
Orton  contrived  to  pass  himself  off  upon  Lady  Tich- 
borne  as  her  son,  and  to  induce  her  to  transfer  some  prop- 
erty to  him  under  that  belief,  and  for  a  time  great 
estates  were  in  jeopardy;  and  many  other  cases  of  im- 
posture, some  successful  and  other  unsuccessful,  have 
been  recorded.  The  criminal  nature  of  such  transactions 
has  never  been  in  doubt. 

A  different  form  of  imposture  is  that  of  the  common 


174  CRIME  AND  CRIMINALS 

beggar  and  begging-letter  writer,  who  makes  himself  out 
(to  be  other  than  he  is,  and  bases  his  claims  to  charity 
on  fictitious  woes  and  misfortunes.  Such  conduct  is 
fraudulent,  and  the  fraud  consists  in  deception  with  re- 
spect to  the  circumstances,  understanding  this  term  in  a 
wide  sense,  in  which  the  transfer  of  property  is  proposed. 

It  would  be  out  of  place  here  to  enumerate  in  detail 
all  the  multitudinous  methods  by  which  fraud  is  prac- 
ticed and  the  dishonest  transfer  of  property  effected. 
All  of  them  will  be  found  upon  examination  to  come 
under  one  or  other  of  the  modes  that  have  been  examined 
above;  but  the  following  demand  further  consideration. 

Murder  for  Gain. — This  is,  of  course,  a  crime  of  the 
class  now  under  consideration,  of  offenses  committed  for 
gain;  but  it  is  peculiar,  and  differs  from  all  other  crimes 
of  the  class,  in  the  extreme  heinousness  of  the  means 
employed.  It  is  the  taking  of  property  against  the  will 
of  the  owner,  and  in  this  its  dishonesty  consists ;  but  the 
dishonesty  of  the  act  is  so  overshadowed  and  submerged 
by  the  lethal  character  of  the  means  employed,  that  it  is 
apt  to  be  overlooked  altogether.  The  criminal  is  prose- 
cuted, not  for  robbery,  or  theft,  or  conversion,  the  end 
in  view,  but  for  the  means  employed  to  attain  the  end. 
In  this  respect  prosecutions  for  murder  do  not  depart 
from  rule.  In  most  cases  of  dishonest  transfer  of  prop- 
erty the  criminal  is  prosecuted  not  for  the  dishonest 
transfer,  but  for  the  means  he  employed  to  bring  it  about; 
as  for  instance  fraud,  threats,  the  use  of  false  weights, 
adulteration,  and  so  forth.  This  points  not  to  any  error 
or  defect  in  the  classification  of  crimes  here  laid  down 
for  the  purpose  of  a  scientific  examination  of  them,  but 
to  the  possibility  and  expediency  of  a  different  classifica- 
tion for  a  different  and  more  practical  purpose. 

Breach  of  Contract. — This  ought  undoubtedly  to  be  a 


PRIVATE  CRIMES  175 

criminal  offense.  It  satisfies  every  definition  of  crime. 
It  is  injurious  to  society.  It  is  an  act  by  which  the  actor 
seeks  to  benefit  himself  by  injuring  another.  It  breaks 
the  rule  laid  down  supra  that  consent  to  a  transfer  of 
property  once  freely  given  must  not  be  withdrawn — 
cannot  honestly  be  withdrawn  without  the  consent  of  the 
other  party.  The  only  reason  why  it  is  not  a  criminal 
offense  in  English  law  is  that  already  stated:  that  the 
gradual  process  of  distinguishing  between  criminal  acts 
and  civil  wrongs  stopped  short  before  it  was  complete, 
and  left  breach  of  contract  on  the  wrong  side  of  the  line. 


CHAPTER  VI 
FAMILY  AND  RACIAL  OFFENSES 

IT  has  been  shown  on  a  previous  page  that  conduct  falls 
naturally  into  three  great  and  primary  departments,  and 
that  conduct  pursued  for  the  purpose,  or  in  obedience 
to  the  instinctive  desire,  of  preserving  the  individual  or 
of  continuing  the  race  may  conflict  with  the  interests  of 
society,  and  thereby  become  a  criminal  offense.  We  have 
dealt  in  the  last  chapter  with  those  offenses  that  arise 
from  the  conflict  between  the  self-preserving  needs  and 
the  social  needs,  and  we  are  now  to  describe  the  offenses 
that  arise  in  the  domain  of  racial  conduct. 

All  of  these  have  the  common  character  of  selfishness. 
They  are  committed  for  the  gratification  of  desires  that 
are  immediately  selfish,  though  their  ultimate  origin  is 
for  the  most  part  in  desires  that  serve  the  interests,  not 
lof  the  individual  actor,  but  of  the  race  to  which  he 
belongs.  A  few,  such  as  brothel-keeping  and  most  cases 
of  prostitution,  are  selfish  from  beginning  to  end,  and 
strictly  speaking  belong  to  the  previous  class,  since  they 
are  committed  solely  for  gain;  but  as  they  utilize  for 
this  purpose  the  sexual  instinct,  they  are  more  conven- 
iently included  in  racial  offenses. 

In  the  lifeworthiness  of  a  society — that  is  to  say,  in 
those  qualities  that  are  of  advantage  to  it  and  tend  to 
secure  its  welfare  and  prevalence,  and  its  success  in  com- 
petition with  other  societies — the  chastity  of  women  oc- 
cupies a  high  place.  The  foundation  of  society  is  the 
family.  Every  society  of  mankind  began  as  a  single 
176 


FAMILY  AND  RACIAL  OFFENSES  177 

family  or  as  a  group  of  families.  When  the  young 
animal,  as  it  grows  up  and  becomes  able  to  fight  the 
battle  of  life,  roams  away  from  its  parents  and  seeks  a 
solitary  existence,  or  an  existence  in  the  company  only 
of  a  mate  that  has  similarly  left  the  family  circle,  social 
ilife  cannot  begin.  It  is  when  the  young  remain  with 
their  parents  for  life,  and  bring  up  children  who  cluster 
round  the  grandparents,  that  the  foundations  of  society 
artTlaid;  and  by  a  continuation  of  the  process  the  family 
grows  into  the  tribe,  and  the  tribe  into  the  nation.  Ulti- 
mately, all  social  existence  rests  upon  the  family;  and  the 
main  factor  to  which  the  family  owes  its  existence  is  the 
exclusive  possession  by  one  person  of  a  person  of  the 
opposite  sex.  Societies  cannot  begin  until  families  are 
formed;  families  cannot  begin  until  permanent  and  ex- 
clusive union  of  the  sexes  becomes  the  rule.  It  is  quite 
true  that  in  certain  societies  other  practices  prevail  at 
certain  stages;  but  these  exceptions  do  not  really  invalid- 
ate the  principle,  as  might  be  easily  shown.  Broadly 
and  generally,  the  family,  and  therefore  the  State,  are 
founded  upon  the  exclusive  possession  by  individuals  of 
each  sex  of  individuals  of  the  other. 

Such  exclusive  possession  rests  ultimately  upon  in- 
stinctive sexual  love,  which  is  nothing  but  the  desire  for 
exclusive  possession.  This  is  safeguarded  by  the  sub- 
sidiary instinct  of  jealousy,  which  is  again  a  manifestation 
of  the  desire  for  exclusive  possession,  or  an  inevitable 
corollary  of  it,  inasmuch  as  it  ensures  antagonism  and 
resistance  to  any  attempt  at  infringement.  Recognizing 
implicitly  the  importance  of  exclusive  possession  as  a 
social  principle,  society  invests  it  with  the  safeguard  of 
marriage,  so  that  the  institution  of  marriage  and  the 
instinct  of  jealousy  work  for  the  same  end  and  serve  the 
same  purpose.  Jealousy,  however,  is  more  extended  in 


178  CRIME  AND  CRIMINALS 

its  range  than  marriage.  It  is  not  limited  to  safeguard- 
ing the  right  to  exclusive  possession  that  marriage  gives. 
It  is  often  exhibited  before  marriage,  and  often  when 
marriage  is  not  contemplated,  or  not  possible.  As  soon 
as  love  selects,  jealousy  mounts  guard  to  repel  third 
parties  from  entering  the  sacred  fold.  In  as  far,  there- 
fore, as  it  contributes  to  the  integrity  of  the  family  and 
the  sanctity  of  the  marriage  tie,  jealousy  is  a  powerful 
auxiliary  to  the  maintenance  of  society,  and  is  an  impor- 
tant social  factor.  But  this  advantage  has  countervailing 
disadvantages.  The  tendency  of  jealousy  is  to  prompt 
to  acts  of  aggression,  and  to  strife  within  the  community, 
and  in  this  way  is  injurious  to  the  integrity  of  society, 
which  in  another  way  it  promotes.  Such  acts  of  aggres- 
sion and  strife,  tending  as  they  do  to  the  disintegration  of 
society,  are  offenses,  and  as  such  are  punishable;  hence 
the  first  class  of  family  and  racial  offenses  is  constituted 
by  those  that  are  due  to  the  motive  of  jealousy. 

Aggressions  prompted  by  jealousy  are  exhibited 
mainly  by  the  male  sex.  The  male  sex  is  by  no  means  the 
exclusive  possessor  of  the  passion  of  jealousy,  but  it  is 
chiefly  in  the  male  that  this  passion  leads  to  acts  of 
aggression;  and  such  acts  being  injurious  to  society  and 
disintegrative  of  it,  anything  that  tends  to  repress,  ob- 
viate, or  minimize  them  is  beneficial,  is  likely  to  grow, 
to  be  fostered  by  natural  selection,  and  to  be  held  in 
high  esteem.  Nothing  more  influential  in  diminishing 
the  aggressions  of  male  jealousy  could  be  devised  than 
an  inherent  disinclination  on  the  part  of  the  female  to 
allow  her  affection  to  stray  from  its  lawful  possessor. 
If  the  exclusive  possession  of  the  woman  by  the  man  can 
be  secured  only  by  incessant  watchfulness,  varied  by 
occasional  combats,  on  the  part  of  the  man,  it  is  evident 
that  so  large  a  part  of  the  time,  energy,  and  life  of  the 


FAMILY  AND  RACIAL  OFFENSES  179 

man  must  be  absorbed  in  this  way  as  to  impair  seriously 
his  opportunities  for  advancing  his  own  interests  in  other 
ways  and  for  serving  the  society.  If,  however,  the 
woman  is  inherently  indisposed  to  entertain  the  courtship 
of  any  but  her  lawful  spouse,  his  hands  are  free  for 
employment  in  advancing  their  common  welfare  and 
that  of  the  society  at  large.  Hence  the  sentiment  of 
chastity  in  women  is  a  most  important  social  asset,  and 
it* is  fostered  and  fixed  by  natural  selection  in  every 
society  that  survives  in  the  struggle  for  life.  The  second 
class  of  family  and  racial  offenses  consists,  therefore,  of 
offenses  against  chastity,  and  against  its  auxiliary  and 
handmaid,  sexual  modesty. 

After  what  has  been  said,  there  is  no  need  to  insist  on 
the  importance  to  the  integrity  of  society  of  a  strict  main- 
tenance of  the  marriage  tie.  Every  infringement  of  its 
sanctity  is  directly  injurious  to  society,  and  strikes  at  the 
very  foundations  on  which  society  is  built.  Therefore 
it  is  an  offense;  and  the  third  class  of  family  and  racial 
offenses  consists  of  offenses  against  the  institution  of 
marriage. 

Unless  the  integrity  of  the  family  is  maintained, 
society  is  disintegrated.  Unless  the  natural  wastage  of 
the  society  by  death  is  made  good  by  the  production  and 
rearing  of  children  to  take  the  place  of  the  members  who 
die,  and  to  keep  the  numbers  of  the  society  replenished, 
the  society  will  dwindle,  and  at  length  expire.  More- 
over, since  society  competes  with  society  in  the  struggle 
for  life,  and  since  in  this  struggle  it  is,  c&teris  paribus, 
numbers  that  prevail,  every  society  is  directly  interested 
in  securing  a  copious  supply  of  children  to  maintain  and 
increase  the  number  of  its  future  competent  members. 
To  secure  the  continual  and  copious  renewal  of  the 
society,  and  reproduction  and  continuation  of  the  race,  to 


i8o  CRIME  AND  CRIMINALS 

which,  after  all,  the  existence  of  the  society  is  subservient, 
various  deeply  rooted  instincts  have  developed  in  man; 
and  any  act  that  militates  against  these  purposes  is  dis- 
countenanced by  society  is  usually  deeply  resented,  and 
made  a  punishable  offense.  Hence  the  fourth  class  of 
family  and  racial  offenses  consists  of  offenses  against  the 
racial  principle. 

These  are  the  four  classes  into  which  family  and  racial 
offenses  naturally  fall;  but  it  is  clear  that  any  of  the 
offenses  that  are  committed  for  purely  selfish  motives 
may  be  committed  from  motives  that  are  partly  or  wholly' 
family  or  racial.  The  same  crime  that  is  committed  to 
secure  a  man's  personal  safety  may  be  committed  to  se- 
cure the  safety  of  his  wife  or  child;  the  same  crime  that  is 
committed  from  vindictiveness  at  an  injury  or  insult  to 
oneself  may  be  committed  in  retaliation  for  an  injury  to 
wife  or  child.  The  same  misappropriation  that  is  com- 
mitted for  individual  personal  advantage  may  be  com- 
mitted for  the  advantage  of  wife  and  children.  Thus, 
any  offense  of  the  private  class  may  become,  in  a  certain 
sense,  a  family  or  racial  offense — that  is,  in  the  sense 
that  it  is  committed  from  a  family  or  racial  motive.  In 
practice,  when  any  such  offense  is  shown  to  have  been 
committed  from  a  family  or  racial  motive,  its  turpitude 
is  diminished,  it  is  regarded  with  indulgence  and  treated 
with  leniency;  so  strong  is  the  sense  of  the  importance 
of  conserving  the  family. 

OFFENSES  COMMITTED  FROM  JEALOUSY 

The  aggression  that  is  prompted  by  jealousy  is  a  very 
fertile  source  of  crimes  of  violence;  and  crimes  of  any 
other  description  due  to  jealousy  are  very  rare.  Crimes 
due  to  jealousy  are,  as  has  been  shown,  due  to  the  desire 


FAMILY  AND  RACIAL  OFFENSES  181 

for  exclusive  possession,  and  are  usually  committed  in 
resentment  against  some  infringement,  actual,  suspected, 
or  threatening,  of  the  cherished  exclusiveness.  They  are 
best  classified  according  as  the  aggression  is  directed 
against  the  rival,  against  the  loved  or  possessed  person, 
or  against  the  jealous  person  himself  or  herself. 

The  aggression  may  be  directed  against  the  rival  or 
interloper  who  seeks  to  disturb  the  exclusive  possession, 
or  MS  at  least  credited  with  this  design.  This  may  be 
regarded  as  the  normal  expression  of  jealousy.  It  is  the 
motive  of  the  combat  of  males  for  the  possession  of 
females  that  is  so  prevalent  throughout  the  animal  king- 
dom, that  has  prompted,  and  still  prompts,  so  many 
duels  and  murders  in  primitive  societies,  and  among  the 
less  cultivated  and  more  primitive  members  of  more 
developed  societies.  It  is  a  remarkable  fact,  and  one 
that  demonstrates  the  improvability  of  human  nature, 
and  perhaps  raises  hopes  of  its  ultimate  perfectibility, 
that  in  the  higher  social  strata  of  the  more  developed 
societies,  dueling  and  crimes  of  violence  from  the 
motive  of  sexual  jealousy  have  practically  ceased.  The 
further  fact  that  such  crimes  are  still  frequently  com- 
mitted by  those  in  the  lower  strata  of  the  very  same 
societies  seems  to  show  that  these  lower  strata  are  in- 
ferior in  morality  to  those  above  them,  which  is  curiously 
inconsistent  with  the  teaching  of  those  fashionable 
writers  who  would  have  us  believe  that  vice  is  unknown 
in  the  lower  strata  and  virtue  is  absent  in  the  upper.  It 
is  often  urged  that  the  rich,  in  as  far  as  they  are  honest, 
are  honest  because,  being  rich,  they  are  under  no  tempta- 
tion to  steal;  and  it  is  frequently  argued  that  since  they 
alone  appear  in  the  divorce  court,  not  only  is  marital 
infidelity  restricted  to  the  well-to-do,  but  the  whole  of 
the  upper  strata  of  society  are  a  seething  mass  of  im- 


i8a  CRIME  AND  CRIMINALS 

morality.  It  would  indeed  be  easy  to  prove  by  biomet- 
rical  methods,  founded  on  the  statistics  of  the  divorce 
court,  that  marital  infidelity  is  unknown  among  the  art- 
isan and  laboring  classes;  a  conclusion  that  throws  some 
light  on  the  value  of  the  method  employed  with  such 
skill  by  Dr.  Goring,  since  it  ignores  the  obvious  fact  that 
the  cost  of  divorce  prohibits  the  poor  from  seeking  it. 
In  a  matter  in  which  the  classes  are  strictly  comparable, 
such  as  this  of  the  crimes  of  violence  due  to  jealousy, 
we  find  that  the  criminality  of  the  poor  is  greater  than 
that  of  the  well-to-do,  out  of  all  proportion  to  their 
numbers. 

Several  curious  and  anomalous  practices,  which  it  is 
difficult  to  account  for,  arise  out  of  jealousy.  In  the 
first  place,  though  it  is  assumed  above  that  jealousy  is  the 
complement  of  love,  this  is  by  no  means  universally  true. 
That  love  should  exist  without  jealousy  is  indeed  ex- 
tremely rare;  though  instances  are  met  with  in  which  a 
wife  who  is  sincerely  attached  to  her  husband  yet  allows 
him  freedom  in  amours;  but  the  reverse  state  of  things, 
in  which  jealousy  is  acute  although  no  love  is  felt,  is  by 
no  means  infrequent.  Marriage  gives  the  right  of  ex- 
clusive possession,  and  when  this  right  is  infringed, 
jealousy  may  be  evinced  even  though  there  is  no  love,  and 
even  though  there  is  positive  aversion  between  husband 
and  wife. 

Another  anomalous  result  of  jealousy  is  that  the  viol- 
ence to  which  it  prompts  may  be  directed,  not  only  against 
the  rival  or  intruder,  not  only  against  the  lover  who 
appears  to  be  in  process  of  detachment,  but  also  against 
the  jealous  party  himself  or  herself.  A  distinction  must 
be  made  here,  however.  The  suicide  of  a  girl  whose 
lover  has  been  enticed  from  her  by  the  wiles  of  an  in- 
truder is  not  necessarily  due  to  jealousy.  It  may  be  due 


FAMILY  AND  RACIAL  OFFENSES  183 

to  mortification,  and  to  that  loss  of  the  greatest  interest 
in  life  which  is  the  common  motive  of  suicide.  But  there 
are  many  cases  in  which  suicide  appears  to  proceed  from 
jealousy  alone,  though  such  suicides  are  usually  preceded 
by  an  attempt  against  the  life  of  one  or  perhaps  against 
the  lives  of  both  the  other  members  of  the  trio. 

For  the  violence  of  jealousy,  though  its  natural  direc- 
tion would  seem  to  be  against  the  intruder  into  that  ex- 
clusive possession  which  is  the  aim  of  love,  is  not  seldom 
directed  against  the  lover  or  the  spouse,  and  this  not 
only  where  the  lover  or  spouse  shows  signs  of  yielding 
to  the  blandishments  of  the  intruder. 

The  intrusion  of  a  third  party  is  not  the  only  obstacle 
to  exclusive  possession  of  the  loved  object.  There  may 
be  pecuniary  difficulties;  there  may  be  opposition  on  the 
part  of  parents  or  relatives;  there  may  be  differences  of 
social  status;  there  may  be  difficulties  of  access,  from 
distance  or  other  cause;  there  may  be  indifference  or 
even  aversion  on  the  part  of  the  loved  one;  and  in  such 
cases  a  motive  that  is  scarcely  distinguishable  from  jeal- 
ousy prompts  to  violence  against  one  or  other,  or  perhaps 
both,  of  the  pair.  Few  assizes  go  by  without  the  trial  of 
some  lover  who  has  killed  his  sweetheart  for  the  avowed 
reason  that  "  if  he  could  not  have  her,  nobody  else 
should." 

Another  of  the  crimes  due  to  jealousy,  though  it  is  not 
usually  attributable  to  this  motive,  is  the  double  suicide 
of  a  pair  of  lovers  whose  union  is  prevented  or  interfered 
with.  Such  double  suicides  are  not  usually  attributed 
to  jealousy,  but,  if  we  regard  jealousy  as  that  feeling  that 
resents  interference  with  exclusive  possession,  it  should 
seem  that  they  ought  to  be  so  regarded.  Such  suicides 
are  always  those  of  lovers  whose  union  is  prevented  by 
inexorable  circumstances,  or  whose  continual  enjoyment 


1 84  CRIME  AND  CRIMINALS 

of  each  other  is  become  impossible.  As  has  already  been 
said,  attempt  at  single  suicide,  though  it  remains  a  crime 
in  law,  is  scarcely  ever  treated  as  a  crime;  but  attempts 
at  double  suicide  are  rightly  placed  upon  a  different  foot- 
ing. If  one  party  alone  survives  the  attempt,  he — for 
the  survivor  is  usually  a  man — is  charged  with  murder; 
and  if  both  survive  they  may  both  be  charged  with  at- 
tempted murder,  and  must  not  expect  to  be  treated  with 
the  leniency  that  is  accorded  to  the  solitary  attempter  of 
suicide;  and  the  reason  is  clear.  The  act  of  suicide  re- 
quires for  its  commission  the  greatest  fortitude  and  de- 
termination, and  if  it  is  not  done  in  a  moment  of  frenzied 
impulse,  it  requires  a  very  great  endeavor  to  screw  the 
courage  up  to  the  sticking  point.  Every  one  is  open  to 
influence  and  persuasion  by  others,  and  if  influence  and 
persuasion  are  exerted  against  the  project  of  suicide, 
they  will  probably  prevail  unless  the  suicide  is  the  out- 
come of  madness.  When,  however,  influence  and  per- 
suasion, and  especially  the  encouragement  of  example  or 
accompaniment,  are  exerted  in  favor  of  the  project,  they 
may  very  well  make  just  the  difference  between  a  half- 
formed  intention  and  the  full  determination  that  is  neces- 
sary for  the  execution  of  the  act;  and  thus  may  become 
a  true  causa  efficient.  In  such  a  case,  the  person  who 
incites,  or  confirms,  or  strengthens,  an  intention  to  com- 
mit suicide  does  in  fact  cause  the  death  of  another  per- 
son, and  is  rightly  held  guilty  of  murder. 

When  the  motive  of  jealous  violence  is  to  secure  an 
exclusive  possession  that  is  not  yet  attained,  or  is  resent- 
ment against  the  impossibility  of  securing  exclusive  pos- 
session, the  violence  is  usually  directed  against  one  or 
both  of  the  pair;  but  when  the  motive  is  to  maintain  the 
exclusive  possession,  to  prevent  or  avenge  its  infringe- 
ment— that  is  to  say,  after  marriage, — the  vengeance  of 


FAMILY  AND  RACIAL  OFFENSES  185 

the  lover  is  more  apt  to  fall  upon  the  rival;  the  other 
member  of  the  pair  being  in  almost  equal  danger  in 
either  case.  The  wronged  husband  is  much  more  rarely 
a  suicide  than  the  disappointed  lover.  He  is  more  apt  to 
take  vengeance  on  his  rival,  and  less  apt  to  direct  his 
violence  against  himself.  On  the  other  hand,  the  woman 
whose  lover  has  deserted  her  not  seldom  commits  or 
attempts  suicide,  and  is  more  apt  to  express  her  despair 
in  tliis  way  than  by  violence  directed  against  either  of  the 
other  parties;  but  the  woman  whose  husband  has  deserted 
her  or  is  unfaithful  to  her  seldom  commits  suicide,  and 
if  she  exhibits  violence  at  all,  it  is  usually  against  her 
husband. 

Every  act  of  aggression  by  one  member  of  a  society 
towards  another  is  injurious  to  the  society,  and  there- 
fore is  a  crime,  and  all  the  aggressions  prompted  by 
jealousy  are  rightly  so  estimated. 

OFFENSES  AGAINST  CHASTITY  AND  MODESTY 

The  second  class  of  family  and  racial  offenses  consists 
of  offenses  against  chastity  and  modesty.  It  has  already 
been  shown  that  these  are  directly  injurious  to  society, 
and  therefore  are  rightly  treated  as  crimes.  They  in- 
clude rape,  defilement  of  young  girls,  and  indecent  as- 
sault, and  aids  to  the  violation  of  chastity,  such  as  pro- 
curation, brothel-keeping,  and  abduction.  They  include, 
moreover,  incitements  to  unchastity,  such  as  the  produc- 
tion and  dissemination  of  obscene  literature  and  obscene 
pictures,  obscene  stage  plays  and  other  spectacles,  and 
indecent  exposure  of  the  person. 

If  such  acts  as  those  just  enumerated  are  rightly  esti- 
mated to  be  offenses,  which  can  scarcely  be  doubted,  it 
is  difficult  to  see  why  prostitution  and  fornication  also 


i86  CRIME  AND  CRIMINALS 

should  not  be  so  regarded,  for  they  are  at  least  equally 
violations  of  chastity.  There  is,  moreover,  an  additional 
reason  why  they  should  be  included  among  offenses,  for 
they  are  distinctly  inimical  to  the  practice  of  marriage, 
being  to  some  extent  substitutes  for  it;  and  when  prac- 
ticed by  married  persons,  are  damaging  to  the  marriage 
tie.  Logically  it  seems  that  they  ought  to  be  considered 
crimes,  and  in  fact  they  have  at  some  times  and  in  some 
societies  been  so  considered.  When  the  Puritans  attained 
to  ascendency  in  this  country,  these  acts  were  made  crim- 
inal, and  so  they  were,  I  believe,  in  New  England.  For- 
nication was  forbidden  by  the  Mosaic  law,  and  other 
instances  might  be  cited.  Yet  neither  fornication  nor 
prostitution  is  now  reckoned  as  a  crime  in  any  nation,  as 
far  as  I  know,  and  it  is  interesting  to  inquire  the  reasons 
for  the  omission. 

In  the  first  place,  it  is  to  be  noted  that  such  practices, 
although  not  actually  criminal,  are  frowned  upon  and 
considered  disgraceful;  and  this  is  half  way  towards  con- 
stituting them  crimes.  That  which  is  generally  repro- 
bated has  only  to  be  intensely  reprobated  and  it  will  be 
forbidden  by  law,  and  so  become  a  crime  in  the  restricted 
sense.  If  these  practices  are  not  regarded  as  crimes,  it 
is  because,  although  they  are  very  generally  reprobated, 
they  are  not  reprobated  with  sufficient  intensity.  But  if 
they  are  injurious  to  the  society  in  which  they  prevail, 
they  should  be  intensely  reprobated,  as  other  injurious 
practices  are,  although  in  many  cases  the  nature  of  the 
injury  that  they  inflict,  and  even  the  fact  that  they  inflict 
any  injury  at  all,  are  very  imperfectly  recognized.  Un- 
natural offenses,  for  instance,  are  intensely  reprobated, 
though  few  could  say  in  what  way  they  injure  society, 
or  even  that  they  are  injurious.  The  reasons,  I  think, 


FAMILY  AND  RACIAL  OFFENSES  187 

are  somewhat  as  follows: — In  the  first  place,  though 
prostitution  and  fornication  do  infringe  the  family  prin- 
ciple, they  are  not  very  sharply  antagonistic  to  the  con- 
stitution of  the  family.  They  neither  break  up  families 
already  constituted,  nor  do  they  to  any  very  appreciable 
extent  prevent  the  formation  of  new  families.  At  most, 
they  postpone  or  assist  in  postponing  the  formation  of 
new  families.  If  there  were  no  way  of  gratifying  the 
crude  sexual  instinct  except  in  the  legitimate  way  by  mar- 
riage, undoubtedly  marriages  would  be  earlier  and  more 
numerous  than  they  are;  but  this  would  be  the  only  effect 
upon  marriage  that  the  abolition  of  these  practices  would 
have,  and  the  effect  would  not  be  wholly  beneficial  to 
society.  It  is  better  for  the  individual,  and  better  for 
society  also,  that  marriage  should  not  take  place  until 
the  man  has  made  for  himself  a  certain  position  and 
secured  for  himself  a  stable  income.  We  see  the  conse- 
quences of  too  early  marriages  in  the  prolific  production 
of  children  by  the  very  poor,  children  brought  up  under 
the  worst  possible  conditions,  many  of  whom  become 
burdens  upon  society,  and  very  few  indeed  of  whom  be- 
come as  useful  members  of  society  as  those  brought  up 
under  more  favorable  conditions.  In  this  respect,  there- 
fore, the  practices  under  consideration  are  not  very  in- 
jurious to  society,  and  what  evil  they  do  is  to  some  extent, 
at  any  rate,  offset  by  a  certain  amount  of  benefit.  Nor 
are  they  in  practice  found  to  be  of  themselves  very  in- 
jurious in  any  other  respect.  They  are  indeed  highly 
injurious  as  the  chief  means  of  disseminating  venereal 
diseases;  but  this  is  an  incidental  effect,  and  by  no  means 
a  necessary  effect.  It  would  not  be  difficult  to  prevent  it, 
even  though  the  practices  that  now  spread  the  diseases 
so  widely  should  continue  undiminished. 


i88  CRIME  AND  CRIMINALS 

But  the  chief  reason  that  the  practices  are  not  con- 
sidered crimes  is  probably  that  they  are  so  very  wide- 
spread. Men  will  not  readily  convict  others  of  a  crime 
of  which  they  themselves  are  guilty,  nor  will  they  be 
eager  to  make  criminal  a  practice  in  which  they  them- 
selves have  indulged,  especially  when  there  is  little  pros- 
pect of  obtaining  convictions.  We  have  little  objection 
to  punishing  other  people  for  crimes  to  which  we  have 
ourselves  no  inclination,  but  we  take  a  very  different  view 
if  our  legislation  may  bring  ourselves  into  the  dock;  and 
even  if  we  are  ourselves  in  a  position  to  throw  stones  at 
random  without  danger  of  breaking  our  own  windows, 
we  must  hesitate  to  do  so  if  we  have  reason  to  suppose 
that  few  of  our  neighbors  will  escape  a  fractured  pane. 
Unless  the  danger  to  society  is  serious  and  imminent, 
we  shall  not  punish  as  a  crime  a  practice  that  is  very 
widespread.  It  is  for  these  reasons,  I  think,  that  pros- 
titution and  fornication  are  not  included  in  family  and 
racial  offenses. 

OFFENSES  AGAINST  MARRIAGE 

Marriage  gives  formal  and  legal  sanction  to  that  ex- 
clusive mutual  possession  of  husband  and  wife  which  is 
the  purpose  of  love,  and  which  is  the  foundation  of  the 
family.  Anything  that  impairs  the  sanctity  and  bind- 
ing force  of  marriage  is  ipso  facto  injurious  to  society, 
and  is  an  offense. 

Marriage  gives  to  each  of  the  parties  to  it  exclusive 
possession  of  the  other;  and  whether  this  exclusive  pos- 
session was  originally  desired  by  both  or  not,  it  some- 
times happens  that  in  course  of  time  it  becomes  distasteful 
to  one  or  both  of  them — sometimes,  it  must  be  admitted, 


FAMILY  AND  RACIAL  OFFENSES  189 

with  good  reason.  In  such  cases  the  tie  may  be  broken, 
or  an  attempt  may  be  made  by  one  of  the  parties  to  break 
it,  either  by  desertion  or  by  compassing  the  death  of  the 
other. 

The  law  regards  desertion  by  the  husband  very  dif- 
ferently from  desertion  by  the  wife;  the  distinction 
resting  on  the  presumption  that  the  husband  is  bound 
to  maintain  his  wife,  while  the  wife  has  no  such  obliga- 
tion" towards  the  husband.  A  husband  who  deserts  his 
wife  commits  an  offense  and  is  punishable  by  law,  especi- 
ally if  he  leaves  her  destitute,  and  the  law  will  punish 
him,  will  compel  him  to  return  to  her,  or  at  any  rate  to 
maintain  her;  but  the  wife  who  deserts  her  husband  com- 
mits no  offense  in  English  law,  and  the  husband  cannot 
compel  her  to  return  to  him.  The  different  treatment  ac- 
corded to  husband  and  wife  is  inequitable.  If  the  hus- 
band is  bound  to  maintain  his  wife,  the  wife  has  a 
reciprocal  duty  to  render  good  offices  towards  her  hus- 
band; and  if  the  one  is  punishable  for  neglect  of  duty, 
the  other  should  be  punishable  for  neglect  of  the  recip- 
rocal duty. 

In  a  few  cases  the  marriage  tie  becomes  so  irksome 
that  one  party  seeks  to  end  it  by  the  murder  of  the  other. 
Women  rarely  commit  murder.  Murder  is  not  a  fem- 
inine foible;  but  when  a  woman  does  commit  murder, 
the  crime  is  almost  always  of  the  family  or  racial  class. 
It  is  almost  always  within  the  family.  It  is  the  murder 
of  husband  or  child.  Murder  committed  by  a  woman  for 
gain  or  for  non-sexual  vindictiveness  is  almost  unknown. 
When,  however,  murder  is  committed  to  escape  from  a 
distasteful  marriage,  it  is  more  often  committed  by  the 
woman  than  by  the  man,  and  is  usually  committed  by 
means  of  poison.  Men  much  more  often  than  women 


igo  CRIME  AND  CRIMINALS 

murder  their  spouses  from  a  motive  of  jealousy:  much 
less  often  from  the  motive  of  escaping  from  a  dis- 
tasteful marriage. 

Desertion  is  a  grave  offense  against  the  institution  of 
marriage,  but  in  itself  it  is  a  single  offense.  It  breaks 
up  the  family,  but  it  substitutes  no  spurious  tie  for  that 
of  marriage.  Bigamy  is  a  double  attack  upon  marriage. 
It  breaks  the  existing  tie,  and  it  substitutes  for  the  valid 
tie  one  that  is  but  a  sham.  Desertion  wrecks  one  home 
and  breaks  up  one  family;  bigamy  vitiates  two  families 
and  poisons  two  homes.  But  its  turpitude  in  the  eye  of 
the  law  lies  in  its  misuse  of  the  provision  of  the  law.  The 
law  gives  its  formal  sanction  to  union  with  one  person 
of  the  opposite  sex,  and  to  make  use  of  the  legal  forms 
to  enter  into  a  double  union  is  a  misuse  of  the  law  which 
the  law  must  put  a  stop  to. 

The  usual  motive  for  bigamy  is  the  motive  of  gain. 
It  is  not  usually  committed  either  from  detestation  of 
the  lawful  spouse  or  from  inclination  towards  the  spuri- 
ous one.  It  is  usually  committed  as  a  minor  motive  to 
escape  from  the  obligation  of  providing  for  the  legiti- 
mate family,  but  mainly  to  enjoy  the  property  of  the 
illegitimate  spouse. 

The  remaining  offense  against  the  marriage  tie  is 
adultery.  In  early  times,  as  soon  as  crimes  became  pun- 
ishable by  law,  and  not  merely  by  the  kindred  of  the 
person  wronged,  crimes  were  both  crimes  and  sins,  and 
were  adjudicated  upon  by  the  judge  and  the  bishop  in 
common.  When  crimes  were  separated  from  sins,  the 
separation  was  not  made  on  logical  grounds,  but  in  a 
rough-and-ready  manner;  and  while  the  majority  of 
family,  sexual,  and  racial  irregularities  were  apportioned 
to  the  Church,  others  remained  in  the  sole  jurisdiction 
of  the  secular  courts.  Unnatural  offenses  are  still  triable 


FAMILY  AND  RACIAL  OFFENSES  191 

in  the  King's  courts,  but  fornication  and  adultery  are 
ecclesiastical  offenses;  yet  in  its  tendency  to  loosen  the 
bonds  of  family,  and  thus  impair  the  fabric  of  society, 
no  offense  is  graver  than  that  of  adultery,  at  any  rate  in 
the  woman.  It  remained  for  long  in  this  country,  and 
still  is  in  Ireland,  actionable;  and  the  husband  may  sue 
for  damages  the  man  who  has  invaded  his  marital  monop- 
oly; so  that  here  again  we  see  an  instance  of  erroneous 
partition  of  wrongs,  and  the  relegation  of  what  should 
be  a  penal  offense  to  a  less  severe  jurisdiction.  In  a 
strictly  logical  jurisprudence,  adultery  would  be  a  crim- 
inal offense. 


OFFENCES  AGAINST  THE  RACIAL  PRINCIPLE 

The  fourth  and  last  class  of  family  and  racial  offenses 
consists  of  those  that  are  injurious  to  society  by  impair- 
ing its  replenishment — that  is  to  say,  by  limiting  the 
succession  of  new  members  to  take  the  place  of  those  who 
die.  The  continual  renewal  of  the  community  is  scarcely 
to  be  distinguished  in  its  means  from  the  reproduction 
and  continuation  of  the  race,  which  is  the  ultimate  pur- 
pose of  the  life  of  all  living  things.  We  are  here  moving, 
therefore,  among  the  most  deeply  rooted  and  funda- 
mental of  all  instincts,  and  it  is  little  wonder  if  we  find 
that  acts  militating,  even  indirectly  and  remotely,  against 
these  instincts  are  fiercely  resented  and  regarded  as 
crimes. 

Neglect  of  children,  and  a  fortiori  cruelty  to  children, 
outrage  one  of  the  deepest  sentiments  of  our  nature, 
which  bids  us  cherish,  nourish,  foster,  and  preserve,  first 
our  own  children,  and  then  children  as  children.  The 
very  weakness  and  helplessness  of  children  appeal  irre- 
sistibly to  every  right-minded  person  to  protect  them, 


i92  CRIME  AND  CRIMINALS 

and  he  who  causes  them  to  need  protection  outrages  a 
primary  and  fundamental  instinct.  It  is  remarkable  that 
only  of  late  years  has  cruelty  to  children  been  made  a 
criminal  offense. 

The  primary  duty  of  parents  is  to  nourish  and  cherish 
the  infant  through  its  stage  of  helplessness  and  ineffi- 
ciency, and  to  fit  it  to  fight  its  own  battle  of  life.  It 
has  long  been  held  that  it  is  the  duty  of  every  citizen  to 
increase  and  multiply  and  replenish  the  earth,  but  it  is 
only  of  late  years  that  it  has  been  explicitly  recognized 
that  this  is  only  half  the  duty  of  the  parentage.  This 
duty  is  not  complete  until  the  child  has  been  equipped  so 
as  to  sustain  itself;  and  this  equipment  includes  not  only 
the  supply  of  food  necessary  to  bring  it  to  a  self- 
supporting  age,  but  also,  as  is  now  at  length  perceived, 
the  supply  of  a  sufficient  education.  Thus  it  is  made  a 
criminal  offense  to  neglect  a  child  in  this  respect  also. 

Infanticide 

A  worse  crime  than  either  neglect  or  cruelty  to  chil- 
dren is  their  actual  destruction;  and  here  a  distinction 
is  drawn  between  the  murder  of  a  child  old  enough  to 
have  a  developed  consciousness,  and  the  murder  of  the 
scarcely  conscious  infant.  The  murder  of  children  above 
the  age  of  complete  helplessness  is  grouped  together  with 
the  murder  of  adults,  but  infanticide  is  differently  re- 
garded by  opinion  everywhere,  and  in  some  nations  is 
differently  regarded  by  the  law.  There  have  been,  and 
yet  are,  societies  in  which  the  practice  of  infanticide  is 
permitted  by  law,  and  regarded  as  a  blameless  and  in 
some  cases  even  as  a  praiseworthy  proceeding.  Even  in 
this  country  at  the  present  day  there  are  those  who  openly 
advocate  the  estimation  of  infanticide  as  a  venial  offense, 


FAMILY  AND  RACIAL  OFFENSES  193 

to  be  punished,  if  at  all,  as  a  peccadillo  rather  than  as  a 
serious  crime.  We  need  not  go  this  length,  and  yet  may 
admit  that  infanticide  is  not  equal  in  heinousness  to 
other  cases  of  murder.  In  comparison  with  other  cases 
of  murder,  and  indeed  with  other  crimes  of  violence,  it 
stands  on  a  very  different  footing.  In  no  other  crime  is 
less  suffering  inflicted.  The  victim's  mind  is  not  suffi- 
ciently developed  to  enable  it  to  suffer  from  the  contem- 
plation of  approaching  suffering  or  death.  It  is  incapable 
of  feeling  terror  or  fear.  Its  consciousness  is  scarcely 
developed  enough  to  enable  it  to  suffer  pain.  Its  loss 
leaves  no  gap  in  any  family  circle,  deprives  no  child  of 
its  breadwinner  or  its  mother,  no  human  being  of  friend, 
helper,  or  companion.  The  crime  diffuses  no  sense  of 
alarm  or  insecurity;  no  one  feels  a  whit  less  safe  because 
it  has  been  committed.  It  is  purely  and  solely  a  racial 
crime.  It  injures  society,  not  as  it  is,  but  as  it  will  be — 
injures  it  by  striking  at  the  provision  of  future  citizens 
to  take  the  place  of  those  who  are  growing  old,  and  by 
whose  loss  in  the  course  of  nature  the  community  must 
die  out  and  disappear  unless  it  is  replenished  by  the  birth 
and  upbringing  of  children.  There  is  therefore  a  good 
deal  to  be  said  for  placing  infanticide,  which  is  almost 
always  committed  by  the  mother  of  the  victim,  in  a  class 
distinct  from  other  cases  of  murder,  and  for  giving 
formal  sanction  to  the  practice  that  is  invariably  fol- 
lowed, of  inflicting  on  the  criminal  a  mitigated  punish- 
ment. 

In  English  courts,  the  sentence  of  death  is  always 
pronounced  upon  mothers  found  guilty  of  infanticide 
but  the  death  penalty  is  never  inflicted;  and  some  judges, 
even  in  passing  sentence,  have  assured  the  convict  that 
the  penalty  ,vill  not  be  inflicted.  Such  a  practice  as  the 
pronouncement  of  a  sentence  that  there  is  no  intention 


194  CRIME  AND  CRIMINALS 

of  carrying  out  is  indefensible;  and  the  law  should  be 
brought  into  harmony  with  practice  by  constituting  of  in- 
fanticide a  crime  of  less  gravity  than  murder.  This  is 
reasonable  and  very  desirable;  but  to  contend,  as  has 
recently  been  contended,  that  infanticide  should  be  re- 
garded, not  as  a  crime  to  be  punished,  but  as  a  mis- 
fortune for  which  the  perpetrator  is  to  be  pitied  and 
sympathized  with,  seems  to  me  not  only  indefensible  but 
pernicious,  a  product  of  the  sloppy  sentimentality  that 
prevailed  before  the  war,  and  that  during  the  war  has 
intervened  with  pernicious  effect  to  protect  the  so-called 
conscientious  objectors  from  the  punishment  they  so 
richly  deserve.  Such  a  mode  of  regarding  infanticide 
would  strike  a  serious  blow  at  the  social  principle,  and 
at  one  of  the  strongest  safeguards  of  chastity.  It  is  true 
that  infanticide  inflicts,  in  comparison  with  other  mur- 
ders, a  minimum  of  harm  on  existing  society,  but  it  is  a 
serious  injury  to  the  principle  of  the  replenishment  of 
society;  and,  moreover,  if  infanticide  were  not  punish- 
able, one  of  the  strongest  deterrents  to  unchastity  in 
those  in  whom  the  instinct  of  chastity  is  insufficient  would 
be  removed,  and  the  bonds  of  sexual  morality  would  be 
seriously  relaxed.  The  punishment  for  infanticide 
should  not  therefore,  be  whittled  down  to  a  merely 
nominal  penalty.  It  is  a  serious  crime,  and  should  be  so 
regarded  and  so  punished. 

As  with  other  murders,  and  in  about  the  same  propor- 
tion of  cases,  infanticide  is  often  the  outcome  of  madness. 
The  time  of  childbirth  is  one  of  the  occasions  in  which 
insanity  occurs  in  women,  and  of  all  the  features  of  the 
insanity  of  childbirth  none  is  more  conspicuous,  none  is 
more  constantly  present,  none  is  more  difficult  to  account 
for,  than  a  fury  of  destructiveness  directed  against  the 
helpless  infant.  It  is  a  commonplace  of  the  treatment  of 


FAMILY  AND  RACIAL  OFFENSES  195 

such  cases  that  the  first  thing  to  do  is  to  take  the  child 
away  from  its  mother  lest  its  life  should  be  sacrificed. 
The  vagaries  of  madness  are  at  best  very  difficult  to 
account  for,  and  this  one  is  notably  inexplicable.  The 
fact  that  mankind  shares  it  with  many  of  the  lower 
animals  does  not  help  much  to  elucidate  it,  but  it  is  a 
fact,  of  which  we  shall  some  day  see  the  significance, 
thaUdogs,  rabbits,  pigs,  and  other  animals  are  frequently 
guilty  of  the  slaughter  of  their  new-born  young. 

Procuring  Abortion 

The  reasons  that  have  been  adduced  above  for  esti- 
mating the  crime  of  infanticide  as  of  less  gravity  than  the 
homicide  of  a  fully  conscious  being  apply  with  additional 
force  to  the  procuring  of  abortion,  a  practice  that  ranks 
as  a  crime  of  great  gravity,  and  is  severely  punished. 
Yet  the  procuring  of  abortion  with  the  consent  of  the1 
woman  wrongs  no  one.  It  prevents  the  foetus  from  at- 
taining complete  development,  but  the  life  of  the  foetus 
is  scarcely  begun,  and  it  is  yet  far  from  being  conscious, 
and  has  not  even  an  independent  existence.  It  would 
strain  the  meaning  of  words  intolerably  to  look  upon  the 
action  as  wrong  done  to  the  foetus,  nor  can  it  be  con- 
sidered a  wrong  to  the  mother,  who  freely  and  eagerly 
consents  to  it.  It  does,  indeed,  endanger  the  life  of  the 
mother,  but  I  know  of  no  instance  in  which  an  actx  other- 
wise innocent,  is  regarded  as  a  crime  because  it  endangers 
the  life  of  the  actor,  or  in  which  an  operation,  freely  con- 
sented to  by  the  subject  for  the  benefit  to  be  obtained 
by  it,  is  considered  on  the  same  ground  a  crime.  No. 
The  only  ground  upon  which  the  procuring  of  abortion 
can  be  held  to  be  a  crime  is  that  it  infringes  the  racial 
principle.  It  deprives  the  community  of  a  potential 


196  CRIME  AND  CRIMINALS 

citizen.  It  is  a  crime  of  the  same  kind  is  infanticide,  and 
is  held  to  be  a  crime  for  the  same  reason.  As  the  poten- 
tial citizen  is  farther  from  the  stage  of  actuality  than  the 
infant,  it  should  seem  that  the  crime  is  of  less  gravity 
than  that  of  infanticide;  but  it  is  in  fact  reprobated  more 
severely  and  punished  with  greater  severity,  and  the  rea- 
sons seem  to  be  two :  first,  it  attracts  to  itself  none  of  the 
sympathy  that  is  felt  for  the  mother  who  kills  her  ille- 
gitimate child,  and  who  is  usually  assumed  to  be  an  in- 
nocent, confiding  creature  who  has  been  led  away  by  the 
arts  of  the  seducer;  and  second,  that  around  the  practice 
of  abortion  clings  some  of  the  odium  that  attaches  to  the 
artts  of  the  pandar.  Both  reasons  seem  destitute  of 
foundation.  The  mother  of  an  illegitimate  child  is  as 
often  as  not  the  seducer  rather  than  the  seduced,  and  the 
women  who  apply  to  have  abortion  procured  are  in  many 
cases  married  and  chaste.  I  can  discover  no  sound  rea- 
son in  ethics  for  the  great  severity  with  which  the  procur- 
ing of  abortion  is  punished  by  law. 

Preventing  Conception 

Infanticide,  procuring  abortion,  and  preventing  con- 
ception are  manifestly  three  degrees  of  the  same  crime, 
and  I  think  manifestly  diminish  in  turpitude  from  the 
first-mentioned  to  the  last.  If  we  continue  the  series, 
it  is  manifest  that  the  next  step  is  marital  continence, 
the  next  is  celibacy,  and  the  last  exaggeration  in  the  same 
direction  would  be  self-mutilation.  None  of  the  last 
four  steps  in  this  series  has  ever  been  considered  a  crime 
in  any  system  of  jurisprudence  known  to  me;  and  the 
Church,  with  curious  inconsistency,  while  it  looks  upon 
the  prevention  of  conception  as  a  sin,  encourages  marital 
continence,  and  looks  upon  celibacy  as  one  of  the  (first 


FAMILY  AND  RACIAL  OFFENSES  197 

of  virtues.  Yet  all  these  are  grades  of  the  same  offense, 
if  offense  it  be.  The  effect  of  them  all  upon  society  is 
alike.  They  all  tend  to  check  the  replenishment  of  society 
with  young  and  fresh  individuals  to  take  the  place  of 
the  old  and  worn-out,  and  are  thus  in  some  degree  in- 
jurious to  society,  and  therefore  partake  of  the  nature 
of  crime.  But  it  is  to  be  remembered  that  they  are 
not  -wholly  or.  necessarily  injurious.  The  restriction  of 
conception  would,  of  course,  if  pushed  to  the  limit,  result 
in  the  arrest  of  the  renewal  of  the  population  and  the 
destruction  of  the  society;  but,  on  the  other  hand,  the 
removal  of  all  prudential  check  upon  the  population 
would  result  in  such  enormous  and  rapid  increase  as 
would  outrun  the  means  of  subsistence  and  become  a 
danger  to  the  State.  The  social  organism,  like  the  in- 
dividual organism,  may  grow  too  fast  for  its  strength, 
and  may  become  disorganized  by  its  own  too  rapid  in- 
crease of  bulk.  As  a  physiological  fact,  there  is  no 
reason,  other  than  the  prudential  check,  why  every 
healthy  woman  who  marries  at  twenty  should  not  have 
twenty  or  more  children;  and  as  an  historical  fact,  there 
has  never  been  any  nation,  people,  or  language,  however 
little  removed  from  barbarism,  or  even  from  savagery, 
in  which  the  practice  of  infanticide,  of  abortion,  or  of 
preventing  conception  has  not  prevailed  extensively. 
The  three  practices,  together  with  the  prevalence  of  in- 
fant mortality,  are  complementary;  and  where  any  one  of 
the  four  is  effectually  prevented,  one  or  other  of  the  re- 
maining three  will  become  efficient  and  restrain  the  too 
rapid  increase  of  population.  Of  all  the  modes  that  have 
been  enumerated,  the  prevention  of  conception  is  the 
most  innocuous;  and  it  is  chimerical  to  suppose  that  it 
will  ever  be  abolished,  nor  is  it  desirable  that  it  should 
be, 


ig8  CRIME  AND  CRIMINALS 

Unnatural  Offenses 

The  injury  done  to  society  by  the  remaining  crimes  of 
the  racial  class — that  is  to  say,  by  unnatural  offenses, 
usually  so  called,  and  other  unnatural  ways  of  gratifying 
crude  sexual  desire — is  very  remote.  It  is  manifest  that 
if  they  were  to  become  universal,  society  would  die  out; 
and  if  they  were  to  become  general,  its  existence  would 
be  imperiled;  and  it  is  probable  that  it  is  to  some  deep, 
underlying  appreciation  of  their  injurious  consequences, 
if  pushed  to  an  extreme,  that  the  reprobation  and  abhor- 
rence with  which  they  are  regarded  is  partly  due.  But 
it  is  more  because  of  the  degradation  of  human  nature, 
and  because  of  the  violation  of  the  racial  principle  that 
they  involve. 

Originally  subject  to  ecclesiastical  jurisdiction  and 
triable  in  the  ecclesiastical  courts,  they  are  now  secular 
crimes,  and  as  such  are  punished  as  a  rule  with  extreme 
severity.  It  is  noteworthy  that  the  severe  sentences 
passed  upon  these  crimes  do  not  appear  to  be  inflicted 
for  their  deterrent  effect,  for  the  trials  are  for  the  most 
part,  and  very  properly,  hushed  up  as  much  as  is  com- 
patible with  their  being  technically  public;  nor  are  they 
passed  with  any  view  to  the  reform  of  the  criminal. 
The  reason  of  their  severity  is  the  deep-seated  revolt  in 
the  mind  of  the  judge,  and  of  the  public  he  represents, 
at  the  nature  of  the  crime. 


CHAPTER  VII 
CRIMINALS 

IT  is^manifest  that  if  one  person  commits  a  crime  and 
another  does  not,  there  must  be  some  difference,  either 
in  the  nature  or  the  experience  of  the  two  persons,  to 
account  for  the  difference  in  conduct.  This,  I  say,  is 
manifest.  It  needs  no  argument  to  establish  it.  In 
certain  Eastern  countries  it  is  not  unknown  for  a  refined, 
wealthy,  prosperous  man  of  business,  even  for  a  powerful 
Minister  of  State,  on  arriving  at  a  certain  age  or  period 
of  his  career,  to  strip  himself  of  his  possessions  and  his 
power,  and  to  lead  the  life  of  a  wandering  mendicant, 
clothed  in  a  rag  or  two,  and  entirely  dependent  for  food 
and  lodging  upon  the  occasional  charity  of  those  he 
meets.  This  he  does,  urged  by  the  desire  of  securing 
a  better  position  for  himself  in  the  life  hereafter,  or  it 
may  be  merely  as  a  matter  of  duty.  It  is  clear  that  a 
man  of  such  a  cast  of  mind  would  never  pick  a  pocket, 
or  forge  a  will  in  order  to  acquire  a  fortune.  The  nature 
of  the  man  would  render  such  crimes  impossible  to  him. 
He  would  be  destitute  of  that  desire  for  gain  which  is  a 
necessary  antecedent  to  the  commission  of  such  crimes. 
They  would  be  impossible  to  him  owing  to  his  nature. 
Yet  there  are  persons  who  do  pick  pockets,  others  who 
forge  wills,  and  others  again  who  try  by  various  dis- 
honest means  to  acquire  unlawful  gain.  It  is  clear  that 
the  reason  crimes  of  dishonesty  are  possible  to  the  one 
man  and  impossible  to  the  other  is  the  difference  in  their 
natures.  The  one  has  desires,  longings,  cravings,  of 

199 


200  CRIME  AND  CRIMINALS 

which  the  other  is  destitute.  The  difference  is  a  differ- 
ence of  internal  disposition.  Similarly,  a  kindhearted, 
motherly  woman,  overflowing  with  the  milk  of  human 
kindness,  of  the  loving  and  protecting  nature  that  so 
many  women  are,  could  never  commit  a  cold-blooded 
murder,  especially  the  murder  of  a  child.  Such  an  act 
would  be  so  repulsive  to  her  that  not  only  would  she  not 
undertake  it  voluntarily,  but  no  coercion  would  compel 
her  to  do  it.  She  would  suffer  death  first.  The  crime 
would  be  impossible  to  her  because  of  her  nature.  Yet 
there  are  persons  who  do  commit  cold-blooded  murder, 
and  such  persons  must,  it  is  manifest,  be  different  in 
nature  from  such  women  as  I  have  sketched.  It  is  the 
difference  in  native  disposition  that  renders  crime,  at  any 
rate  crime  of  a  certain  kind,  possible  for  one  person,  im- 
possible for  another. 

But,  given  two  people  of  the  same  innate  disposition, 
with  equal  proclivities  to  crime,  and  to  a  particular  kind 
of  crime,  then  whether  either  or  both  of  them  will  com- 
mit crime  must  depend  on  circumstances.  Take  the  man 
who  in  London  or  at  race-meetings  picks  pockets,  and 
place  him  in  Equatorial  Africa  or  Brazil,  where  he  will 
meet  with  none  but  naked  savages,  and  it  is  manifest 
that  he  cannot  pick  pockets  for  want  of  pockets  to  pick. 
"  How  oft  the  sight  of  means  to  do  ill  deeds  makes 
ill  deeds  done!"  Every  one  who  reads  or  hears  this 
maxim  subscribes  to  its  truth,  but  I  cannot  find  in  all  the 
voluminous  literature  of  criminology  any  reference  what- 
ever to  it.  As  far  as  I  know,  it  has  never  been  taken 
into  consideration  by  any  writer  on  the  subject.  Yet  it 
is  well  enough  known  to  the  police,  and  is  even  taken 
into  account  in  police  regulations.  There  are  places 
where  shopkeepers  are  forbidden  to  display  their  wares 
openly  and  unprotected  on  the  pavement  in  front  of  their 


CRIMINALS  201 

shops,  since  it  is  found  in  practice  that  goods  so  exposed 
form  an  irresistible,  or  at  any  rate  an  unresisted,  tempta- 
tion to  passers-by  of  low  morality.  One  man  passing 
along  a  street  where  goods  are  exposed  in  this  manner 
will  steal.  Another,  of  more  upright  and  honest  nature, 
will  pass  the  goods  without  stealing,  and  without  being 
tempted  by  the  display  to  steal.  But  even  the  first  man, 
if  hrgoes  home  by  another  street  where  there  is  no  such 
temptation,  will  reach  home  crimeless.  Manifestly, 
whether  he  commits  a  crime  or  whether  he  does  not  will 
depend,  in  this  case,  not  on  the  nature  of  the  man,  but 
on  the  circumstances  he  encounters. 

All  this  is  so  clear,  so  manifest,  so  obvious,  that  it 
renders  the  more  extraordinary  the  fantastic  supposi- 
tions, conjectures,  and  surmises  that  have  been  pro- 
pounded as  cast-iron  facts  with  respect  to  the  kind  of 
persons  who  commit  crime,  and  the  respective  parts 
played  in  its  inception  by  the  nature  of  the  criminal  and 
the  circumstances  that  environ  him.  We  may  distinguish 
no  fewer  than  seven  of  these  doctrines,  each  of  which  has 
for  a  time  prevailed  and  held  the  field  of  general  opinion. 
In  my  opinion,  all  of  them,  including  the  last,  most  ably 
enunciated  and  advocated  by  Dr.  Goring  of  the  English 
Prison  Service,  are  erroneous,  and  this  I  shall  try  to  de- 
monstrate; and  I  shall  add  an  eighth  that  will  perhaps 
be  demolished  by  some  succeeding  writer,  and  super- 
seded by  one  more  closely  in  accordance  with  the  facts. 
There  is  nothing  to  regret  or  be  ashamed  of  if  this 
should  happen.  A  perfectly  true  doctrine,  fitting  accur- 
ately all  the  facts,  is  seldom  achieved  at  a  bound,  is 
seldom  born,  like  Minerva,  adult  and  complete  at  all 
points.  The  history  of  science  is  a  history  of  gradual 
and  successive  approximations.  Early  doctrines,  held 
by  primitive  men,  are  so  crude,  so  wanting  in  support 


202  CRIME  AND  CRIMINALS 

from  reason,  so  incompatible  with  plain  and  clamorous 
fact,  that  we  wonder  that  they  should  ever  have  been 
entertained.  Their  immediate  successors  are  but  little 
less  absurd  and  unreasonable;  and  age  after  age  more 
accurate  knowledge  is  achieved  by  successive  approxima- 
tions. Every  doctrine  should  be  held  only  provisionally, 
until  a  better  one  is  devised.  The  successive  doctrines 
that  have  been  held  with  respect  to  the  persons  who 
commit  crimes  are  roughly  as  follows : — 

i.  Among  primitive  people,  such  as  the  Hebrews  of 
the  Psalms,  mankind  are  sharply  divided  into  the  good 
and  the  bad,  the  righteous  and  the  unrighteous,  the  sheep 
and  the  goats.  In  this  estimation  the  unrighteous,  or, 
as  we  now  call  them,  the  criminals,  are  those  whose  acts 
'and  omissions  are  such  as  to  incur  the  wreath  and  ven- 
geance of  the  tribal  god — a  wrath  and  vengeance  that 
are  utterly  undiscriminating,  and  fall  alike  upon  the  just 
and  upon  the  unjust,  upon  the  righteous  and  the  unright- 
eous, the  tribe  being  regarded  by  its  deity  as  a  whole, 
just  as  the  family  is  regarded  by  the  rest  of  the  tribe 
as  a  whole.  For  any  transgression  by  one  member  of 
the  tribe  the  whole  tribe  is  punished  by  its  god,  and  for 
any  transgression  by  one  member  of  a  family  the  whole 
family  is  punished  by  the  tribe.  Many  instances  of  both 
occur  in  the  early  history  of  the  Hebrews,  and  the  re- 
sponsibility of  the  whole  family  and  the  whole  tribe  for 
the  acts  and  omissions  of  any  one  of  its  members  is  the 
familiar  theme  of  the  students  of  the  early  laws  of  the 
Irish  as  well  as  of  the  Saxon  and  other  tribes.  In  a 
more  advanced  stage  of  opinion,  the  vengeance  of  the 
deity  was  less  blind  and  undiscriminating,  and  was 
directed  against  the  sinner  alone,  who  was  punished  by 
worldly  misfortune  for  his  transgression.  Conversely,  if 
a  man  was  persecuted  by  misfortune  after  misfortune, 


CRIMINALS  203 

it  was  an  infallible  proof  that  he  had  incurred  the  wrath 
of  the  deity  by  his  crimes.  This  was  the  doctrine  assumed 
as  obviously  true  by  those  who  are  ironically  called  the 
comforters  of  Job,  and  the  doctrine  was  for  ever  de- 
molished by  that  superb  masterpiece  of  literature,  the 
Book  of  Job. 

The  opinion  of  mankind  is  not  much  influenced  by 
reasoning,  however,  and  perhaps  even  less  by  allegory; 
and  in  spite  of  the  teaching  of  the  Book  of  Job,  the 
doctrine,  or  at  any  rate  the  practice  founded  on  the  doc- 
trine, of  the  undiscriminating  vengeance  of  God  survived 
until  very  modern  times.  If  tribal  and  national  misfor- 
tune and  disaster  are  incurred  by  the  sins  of  the  individ- 
uals belonging  to  the  tribe  or  nation,  then  the  manifest 
interest  of  the  tribe  or  nation  is  to  get  rid  as  speedily 
and  as  effectually  as  possible  of  the  offending  individual. 
Viewed  as  an  offense  against  the  tribe  or  the  family  of 
the  injured  person,  a  crime  could  be  expiated  by  a  money 
payment  to  the  family  of  the  injured  person,  and  elab- 
orate codes  of  compensation  were  in  force  in  early  times 
in  this  and  other  countries.  But  viewed  as  an  offense 
against  God,  no  such  compounding  of  crime  was  possible. 
The  Jonah  must  be  got  rid  of  by  the  most  speedy  and 
effectual  means — that  is  to  say,  by  slaying  him  out  of 
hand;  and  this  was  the  punishment  awarded  to  those 
offenses  that  were  considered  offenses  against  God  rather 
than  against  man.  But  there  was  no  very  sharp  discrim- 
ination between  the  two.  Accurate  delimitation  is  un- 
known in  the  earlier  stages  of  evolution;  and  practices 
are  pursued,  not  because  they  are  logical,  nor  even  be- 
cause they  are  successful,  but  because  they  are  customary 
and  in  accordance  with  tradition.  Thus  it  was  that  until 
very  modern  times  criminals  of  all  kinds  were  regarded 
as  unpardonable,  and  were  put  to  death  without  mercy 


204  CRIME  AND  CRIMINALS 

and  without  delay.  Such  crimes  as  blasphemy,  witch- 
craft, and  unbelief  were  manifestly  and  directly  sins 
against  God,  and  were  punished  with  death  because  of 
the  horror  they  inspired;  the  underlying  motive  being,  no 
doubt,  the  traditional  belief  that  they  would  bring  down 
the  vengeance  of  God  upon  the  whole  community. 
Crimes  that  are  primarily  and  directly  crimes  against 
men,  such  as  homicide  and  stealing,  were  nevertheless 
secondarily  crimes  against  God,  since  they  violated  the 
Divine  commands  of  the  Decalogue;  and  therefore  it  was 
expedient  that  the  perpetrators  of  these  crimes  also 
should  be  hurried  out  of  the  world,  lest  the  wrath  of 
God  should  be  incurred  by  the  society  that  tolerated  the 
criminal.  It  is  not  contended  that  such  reasoning  was 
articulately  formulated  in  the  minds  of  the  judges  and 
the  public;  but  there  is  little  doubt  that,  if  they  had  been 
questioned,  some  such  reason  as  this  would  have  been 
adduced  in  favor  of  the  practice.  The  real  reason  was, 
no  doubt,  that  the  practice  was  customary  and  traditional, 
and  in  the  minds  of  most  people  until  a  very  late  stage 
of  evolution  it  is  impious  to  depart  from  customary  and 
traditional  practice.  Such  departure  it  does  not  occur 
to  them  to  make. 

This  primitive  view  of  the  criminal,  as  not  only  a 
criminal  but  also  a  sinner,  and  more  a  sinner  than  a 
criminal,  prevailed  in  this  country  to  the  end  of  the  first 
quarter  of  the  nineteenth  century,  and  even  later  it  was 
still  reflected  in  the  terms  of  the  indictment,  which 
charged  the  prisoner  with  "  being  prompted  and  insti- 
gated by  the  devil,  and  not  having  the  fear  of  God  before 
his  eyes." 

2.  This  view  of  the  criminal  as  a  member  of  one  of 
the  two  classes,  the  sheep  and  the  goats,  the  righteous 
and  the  unrighteous,  into  which  mankind  were  sharply 


CRIMINALS  205 

divided,  was  gradually  superseded  by  a  doctrine  which 
regarded  him  as  one  of  the  generality  of  an  undivided 
mankind,  but  one  who  had  succumbed  under  stress  of 
temptation,  and  was  no  otherwise  distinguished.  This 
way  of  regarding  the  criminal  was  strongly  supported 
by  Beccaria  and  Bentham,  who  made  it  the  basis  of  their 
schemes  of  treating  criminals.  They  contended  that, 
since^eriminals  are  normal  persons  resembling  the  rest 
of  the  human  race  in  all  material  respects,  they  are 
swayed  by  the  same  motives;  but  since  the  motives  that 
restrain  other  people  from  committing  crime  are  not  in 
criminals  strong  enough  to  restrain  them  from  commit- 
ting crime,  an  additional  motive,  in  the  shape  of  fear  of 
punishment,  should  be  provided  to  reinforce  the  insuffi- 
cient motives  and  render  them  effectual.  Punishment  of 
the  criminal  is  no  longer  to  be  vindictive,  nor  is  it  to  be 
propitiatory  of  the  anger  of  God,  as  primitive  punish- 
ments are,  for  the  criminal  is  to  be  regarded,  for  the 
purpose  of  human  justice,  no  longer  as  a  sinner  against 
God,  but  solely  as  an  offender  against  the  laws  of  society. 
The  function  of  punishment  is  solely  deterrent.  Its  only 
purpose  is  to  deter  a  would-be  criminal  from  committing 
crime,  and  this  it  can  do  only  if  the  criminal  is  an  ordin- 
ary normal  person,  swayed,  like  the  rest  of  mankind, 
by  fear  of  punishment  among  other  motives. 

3.  A  subsequent  school  looked  more  closely  into  the 
matter,  and,  while  not  departing  in  principle  from  the 
doctrine  that  criminals  are  normal  persons  who  have 
yielded  to  temptation,  yet  observed  that  there  were 
differences  among  criminals,  and  that  to  treat  them  alike 
and  in  the  mass  must  necessarily  perpetrate  injustice, 
which  it  was  one  purpose  of  Beccaria's  and  Bentham's 
systems  to  avoid.  The  doctrine  that  all  criminals  are 
normal  persons  swayed  by  the  same  motives  as  the  rest 


206  CRIME  AND  CRIMINALS 

of  mankind  is  clearly  untrue,  so  these  reformers  dis- 
cerned, of  those  criminals  who  are  lunatics  also,  and  for 
criminal  lunatics  justice  demands  special  treatment. 
Young  persons  also  are  on  a  footing  different  from 
adults,  and  for  them  also  different  treatment  is  required. 
Another  profound  difference  between  the  newer  and  the 
older  schools  was  that,  while  the  latter  punished  only 
to  deter,  the  former  placed  reform  also  as  one  of  the 
purposes  of  punishment.  Both  alike,  however,  postu- 
lated that  the  sane  adult  criminal  is  a  normal,  ordinary 
person  who  has  yielded  to  a  temptation  that  the  non- 
criminal  has  not  succumbed  to,  either  because  he  was 
better  founded  in  morality,  or  perchance  because  the 
temptation  never  came  his  way. 

4.  The  fourth  mode  of  regarding  the  criminal  was 
that  identified  with  the  name  of  Cesare  Lombroso,  and 
called  sometimes  the  anthropological,  sometimes  the  posi- 
tive doctrine.  This  differed  from  the  view  of  Beccaria 
and  his  successors,  and  reverted  to  the  original  doctrine 
that  the  criminal  is  specifically  distinct  from  the  person 
who  does  not  commit  crime.  The  old  view  was,  as  we 
have  seen,  that  the  criminal  or  sinner  was  distinct  from 
the  righteous  man,  and  separated  from  him  by  an  im- 
passable gulf.  This  was  Lombroso's  doctrine  also;  but 
whereas  the  primitive  doctrine  discerned  no  difference 
between  criminal  and  non-criminal  except  that  the  one 
was  wicked  and  the  other  good,  Lombroso  professed  to 
discern  between  them  innumerable  differences,  of  phy- 
sique, of  mind,  and  of  habits,  which  marked  criminals  off 
as  a  separate  race,  as  distinct  from  the  rest  of  the  com- 
munity as,  for  instance,  the  Semitic  Jews  are  distinct 
from  Aryan  Christians  among  whom  they  live,  and,  like 
the  Jews,  easily  distinguished  by  the  discerning  eye  of 
the  anthropological  positivist.  Some  of  the  criminolo- 


CRIMINALS  207 

gists,  as  for  the  first  time  they  dubbed  themselves,  de- 
clared that  the  criminals  were  a  distinct  race  of  men, 
breeding  true  to  type  as  the  Jews  do,  and  arising  in  no 
other  way  than  by  heredity  and  descent.  Others  re- 
garded criminals  much  as  albinos  are  regarded:  that  is 
to  say,  as  sports  or  comprehensive  variations  from  the 
normal  stock,  but  still  constitutionally  different  from  that 
stock.  When  I  say  that  some  criminologists  took  the 
one  view  and  others  the  other,  I  am  crediting  them  with 
more  clear-headedness  and  consistency  than  they  actually 
possessed.  I  do  not  know  that  either  view  was  explicitly 
and  in  plain  terms  formulated  by  any  criminologist,  and, 
though  both  views  may  be  discerned  implicit  in  their 
teaching,  it  cannot  be  said  that  any  criminologists  adhered 
consistently  to  either  view.  The  one  or  the  other  was 
more  or  less  clearly  assumed  for  the  purpose  of  the 
moment,  and  either  was  substituted  for  the  other  when 
convenience  required;  but  I  know  of  no  clear  and  definite 
pronouncement  of  either. 

The  method  of  the  anthropological  criminologist  is,  or 
was,  to  examine  each  criminal  with  respect  to  his  physi- 
cal and  mental  qualities,  his  habits,  conduct,  and  so  forth; 
and  whatever  quality  the  criminologist  found  that  de- 
parted from  an  imaginary  standard  that  he  fixed  in  his 
mind  as  the  normal,  he  put  down  as  a  "  stigma  "  of 
criminality,  marking  the  criminal  off  as  belonging  to  the 
criminal  race  or  pathological  variety  of  human  kind,  and 
distinguishing  him  from  non-criminal  man.  As  the  stan- 
dard of  average  or  normal  man  assumed  by  the  criminol- 
ogist was  never  defined  by  him,  and  as  he  could  vary  it 
as  he  pleased,  and  as,  moreover,  he  never  measured  or 
defined  the  degree  of  departure  from  this  extensible  and 
contractile  standard  that  is  to  characterize  the  criminal, 
it  is  manifest  that  no  human  being  was  safe  from  having 


2o8  CRIME  AND  CRIMINALS 

criminal  "  stigmata "  attributed  to  him.  As  no  two 
human  beings  are  precisely  alike,  as  every  one  departs  in 
some  respect  from  the  average,  and  as  no  fixed  average 
was  ever  ascertained  by  the  criminologist,  it  was  easy  to 
pick  out  in  every  criminal  some  character  or  other  that 
appeared  exaggerated  or  defective  to  a  prejudiced  eye, 
and  to  declare  that  this  character  is  a  "  stigma  "  of 
criminality.  In  short,  the  criminologist  addressed  the 
criminal  much  in  the  following  strain: — 

"  You  are  not  as  other  men  are.  You  belong  to  a 
separate  class  of  human  beings.  You  are  marked  off 
from  the  rest  of  your  race  from  your  birth,  and  are 
devoted  and  predestined  to  a  life  of  crime.  You  are  in- 
capable of  regulating  your  life  according  to  the  canons  of 
rectitude:  they  do  not  apply  to  you.  Your  skull  is  oxy- 
cephalic;  it  is  unsymmetrical;  its  frontal  curve  is  less, 
and  its  parietal  curve  is  greater,  than  those  of  other  men. 
Your  forehead  recedes;  or,  worse,  it  projects.  Your  chin 
projects;  or,  worse,  it  recedes.  You  have  no  wisdom 
teeth.  Your  ears  are  too  large;  they  are  too  small; 
they  are  misshapen.  Your  hair  is  thick;  your  beard  is 
thin.  You  are  dark  in  complexion.  You  are  unusually 
fair.  You  have  a  fixed  look  in  your  eye;  you  have  a 
glassy  stare;  you  look  like  a  bird  of  prey;  you  have  a 
singular  air  of  bonhomie;  you  have  an  angel  face;  you 
have  the  appearance  of  a  wild  beast,  and  the  glance  of 
a  tiger;  you  have  a  peculiarly  benevolent  aspect.  In  ad- 
dition to  these  stigmata,  which  characterize  you  as  a  born 
criminal  you  are  shorter  than  the  average;  you  are  taller 
than  most  men.  Moreover,  you  have  tattoo  marks  on 
your  arms,  and  perhaps  on  your  body  also. 

"  This  being  so,  we  regard  you  as  irresponsible.  You 
are  a  criminal,  it  is  true,  but  the  fault  is  not  yours.  It  is 
not  in  the  habit  you  have  formed  of  yielding  to  your 


CRIMINALS  209 

passions.  It  is  not  in  your  self-indulgence;  your  laziness; 
your  slavery  to  impulse;  your  selfishness;  your  cultivated 
lack  of  self-control.  No!  It  is  impressed  upon  you  by 
your  inheritance.  You,  poor  fellow,  are  visited  with  the 
sins  of  your  father  and  grandfather.  You  are  a  thief,  a 
murderer,  a  violator,  it  is  true,  but  this  is  not  your  fault. 
YoCTare  a  criminal,  as  Falstaff  was  a  coward,  by  instinct. 

"In  one  word,  you  are  degenerate;  and,  since  your 
crimes  are  no  fault  of  yours,  you  shall  not  be  punished 
for  them.  On  the  contrary,  you  shall  be  entertained, 
amused,  instructed.  You  shall  be  treated  with  Turkish 
baths  and  massage,  until  your  criminality  departs  from 
you.  You  shall  exercise  in  a  gymnasium  to  the  strains 
of  a  band  of  music,  played  by  your  fellow-criminals. 
You  are  of  a  weak  mind;  and  therefore  you  shall  be 
aesthetically  cultured  by  a  course  of  lectures  on  Chaucer, 
and  Shakespeare,  and  Emerson,  and  Browning.  You  are 
a  semi-imbecile;  and  therefore  you  shall  be  put  through 
a  course  of  Jowett's  Plato.  As  a  means  of  elevating  your 
character,  you  shall  be  taught  journalism;  and  be  pro- 
vided with  a  newspaper  to  edit,  whose  contributors  and 
readers  shall  be  your  fellow-prisoners." 

It  is  a  wonder  that,  in  an  age  in  which  scientific  methods 
were  extending  rapidly  into  ever  new  fields  of  research 
and  endeavor,  such  stuff  as  this  should  ever  have  been 
accepted,  and  should  have  attained  the  extraordinary 
vogue  that  it  did.  Lombroso  founded  a  very  large 
school,  especially  in  Italy  and  France,  of  writers  whose 
works  are  characterized  by  all,  and  if  possible  more  than 
all,  the  unwarrantable  assumptions,  the  looseness  and 
inaccuracy  of  thought,  the  vagueness  of  description,  the 
superficiality  of  observation,  and  the  dogmatic  assertion 
of  absurdities  as  incontestable  truths,  that  characterize 
the  writings  of  the  Master.  The  cult  never  spread  much 


210  CRIME  AND  CRIMINALS 

in  other  European  countries,  and  in  this  country  Mr. 
Havelock  Ellis  is,  as  far  as  I  know,  its  only  devoted  up- 
holder; but  it  has  attained  a  very  wide  vogue  in  the 
United  States  of  America,  and  has  become  in  some  States 
the  foundation  for  some  very  grotesque  legislation  and 
procedure. 

5.  Some  of  those  who  appreciated  the  absurdity  of  this 
doctrine  were  so  repelled  by  it  as  to  be  driven  into  an  equal 
absurdity  of  an  opposite  kind.  Spencer  taught  that 
all  peculiarities,  and  indeed  all  properties  and  qualities, 
whether  peculiar  or  not,  of  living  things,  must  have  one 
of  two  origins.  They  must  be  derived  either  by  heredity 
from  parents  and  ancestry,  or  be  impressed  by  the  weight 
of  the  circumstances  in  which  the  life  is  passed.  The 
school  of  Lombroso  taught  that  criminality  is  derived 
from  heredity  alone ;  and  the  doctrine  led  to  such  patent 
absurdities  that  its  opponents  flew  to  the  opposite  ex- 
treme, and  asserted  that  criminality  is  the  product  of 
environment  alone;  and  they  asserted,  with  the  same  dog- 
matic assurance  as  their  opponents,  and  with  the  same 
airy  disregard  of  evidence,  what  these  circumstances  are. 
Criminals,  according  to  this  school,  are  not  born  crim- 
inals, but  made  criminals;  and  their  criminality  is  due  to 
poverty,  to  their  being  brought  up  in  bad  homes  by 
drunken  and  criminal  parents,  to  lack  of  education,  to 
drunkenness,  either  of  their  parents  or  of  themselves,  and 
so  forth.  It  did  not  appear  to  these  doctrinaires,  any 
more  than  to  their  opponents,  that  either  proof  or  evid- 
ence of  their  assertions  was  needed.  It  seemed  to  them 
likely,  a  priori,  that  such  circumstances  would  tend  to 
criminality  in  those  subjected  to  them,  and  the  doctrin- 
aires, adopting  holus  bolus  the  method  of  their  adver- 
saries, jumped  to  the  conclusion  that  the  circumstances 
do  produce  criminality,  and,  more  than  this,  that  they  are 


CRIMINALS  211 

the  only  source,  the  only  possible  source,  of  criminality. 
The  conclusion  is  quite  as  irrational  as  the  conclusion  of 
the  opposing  school,  and  if  accepted  would  lead  to  results 
as  disastrous.  The  implication  of  both  doctrines  is  that 
the  criminal  is  wholly  irresponsible  for  his  criminal  acts, 
and  that  punishment  of  the  criminal  is  unjust,  uncalled 
for,  and  futile.  The  doctrine  of  the  anthropological 
school  made  the  criminal  irresponsible  because  he  is  born 
to  be  a  criminal,  and  cannot  help  his  birth  or  alter  his 
innate  proclivities.  The  doctrine  of  the  environmental 
school  is  that  the  blame  of  criminality  rests  not  upon  the 
criminal,  but  upon  "  society,"  which  gave  him  a  criminal 
father  and  a  drunken  mother,  permitted  him  to  be  reared 
in  an  insanitary  home,  failed  to  educate  him,  and  made 
him  a  drunkard.  These  are  not  the  very  words  of  the 
doctrine,  it  is  true.  Doctrinaires  of  this  character  do  not 
clothe  their  doctrines  in  plain  terms.  They  prefer  vague 
and  complacent  generalities.  They  say  "  society  and  not 
the  criminal  is  responsible."  But  when  we  track  the  doc- 
trine to  its  lair,  and  compel  it  to  reveal  itself  in  its  naked 
simplicity,  this  is  what  it  means;  and  the  criminal  him- 
self is  not  slow  to  adopt  it.  It  is  comforting  to  him, 
and,  pushed  to  its  logical  conclusion,  it  would  leave  him 
free  to  give  full  rein  to  his  criminal  propensities,  and  re- 
lieve him  from  any  punitive  consequences  of  doing  so. 
The  criminal  may  be,  as  Dr.  Goring  says  he  is,  deficient 
in  intelligence,  but  he  has  enough  sense  to  seize  with 
avidity  upon  the  doctrine  that  "  society  is  responsible," 
and  to  throw  it  in  the  teeth  of  those  agents  of  society 
who  are  entrusted  with  his  trial  and  his  custody.  "  Soci- 
ety "  he  says  "  is  responsible  for  my  crime ;  it  is  society 
and  not  I  who  ought  to  be  punished  for  it." 

As  I  have  said,  the  doctrine  is  a  mere  speculation.     It 
is  a  surmise,  founded  solely  upon  an  apparent  a  priori 


212  CRIME  AND  CRIMINALS 

possibility,  and  has  not  a  shred  of  proof  nor  even  a 
vestige  of  evidence  to  support  it.  Dr.  Goring  has  exam- 
ined it  by  the  statistical  method,  and  has  shown  that 
in  the  light  of  that  method  it  is  quite  untenable;  but  no 
demonstration  of  its  falsity  is  needed.  Until  some  evid- 
ence in  its  favor  is  brought  forward,  it  is  not  worth  exam- 
ination, much  less  acceptance;  nevertheless,  so  low  is 
the  general  standard  of  intelligence,  that  it  has  in  fact 
been  very  widely  accepted. 

6.  A  passing  notice  must  be  paid  to  a  school  that  has 
never  had  much  influence  or  many  followers,  which  re- 
gards the  criminal  as  the  product  of  disease — of  a  disease 
allied  to,  if  not  identical  with,  madness.  In  the  opinion 
of  coroners'  juries,  almost  every  suicide  was  ipso  facto 
mad  when  he  committed  the  crime  of  suicide.  In  the 
opinion  of  at  least  one  of  the  school  we  are  now  treat- 
ing of,  every  murderer  is  ipso  facto  mad  at  the  time  the 
murder  is  committed.  For  the  coroners'  jurors  there  is 
some  excuse.  They  wish  to  save  the  feelings  and 
minimize  the  distress  of  the  relatives  of  the  dead.  They 
are  strongly  influenced  by  custom,  from  which  unintelli- 
gent natures  are  loath  to  depart;  and  the  custom  origin- 
ated in  good  sound  reasons,  which  have  now,  however,  in 
great  measure  ceased  to  operate.  A  coroner's  verdict 
of  felo  de  se  carried  with  it  terrible  consequences.  The 
felon  of  himself  was  (and  still  is)  denied  Christian  burial, 
a  deprivation  that  caused  in  former  times  much  more 
distress  than  it  does  now  to  the  surviving  relatives.  He 
was  buried  at  midnight,  at  the  junction  of  two  roads — 
at  the  four  cross  roads — and  a  stake  was  driven  through 
his  body  to  indicate  to  wayfarers  what  lay  beneath  their 
feet.  Besides  this,  his  lands  and  goods  were  forfeited; 
and  it  was  to  prevent  this  as  well  as  the  other  conse- 
quences of  a  verdict  of  felo  de  se  that  coroners'  juries 


CRIMINALS  213 

took  to  violating  their  oaths,  and  finding,  in  the  teeth  of 
the  evidence,  that  the  suicide  was  mad  when  he  took  his 
lift1.  They  did  not  think  he  was  mad.  In  very  many 
cases  they  knew  he  was  not;  but  they  brought  him  in 
"  temporarily  insane  "  without  a  vestige  of  evidence,  and 
out  of  merciful  consideration  for  the  feelings  and  the 
pockets  of  the  survivors,  with  whom  they  deeply,  and 
usually  justly,  sympathized. 

The  verdicts  of  coroners'  juries  that  suicides  are  tem- 
porarily insane  are  not  entitled  to  consideration,  and 
receive  none.  They  carry  no  weight,  because  every  one 
knows  very  well  that  the  jurors,  in  giving  such  verdicts, 
do  not  care  a  brass  farthing  for  the  evidence,  and  care  a 
great  deal  for  the  feelings  of  the  survivors.  The  opin- 
ion of  those  who  pretend  that  criminality  is  a  form  of 
madness,  or  a  manifestation  of  madness,  or  is  in  some 
way  allied  to  madness  and  partakes  of  the  nature  of  mad- 
ness, are  entitled  to  no  more  weight  than  the  verdicts  of 
coroners'  juries,  but  for  different  reasons.  The  reasons 
are. many.  In  ihe  first  place  the  doctrine  rests  on  the 
mere  ipse  dlxlt  of  him  who  states  it.  No  proof  is  offered. 
No  evidence,  even,  is  offered.  The  doctrine  rests  solely 
upon  authority;  and  now  we  have  left  the  day  of  Aquinas 
behind  us,  no  doctrine  can  be  admitted  or  can  carry  any 
weight  at  all  in  science  unless  that  doctrine  rests  upon 
something  more  substantial  than  authority.  In  the 
second  place,  the  authority  is  not  unimpeachable.  In  the 
third  place,  when  it  is  said  that  criminality  is  a  kind  of 
madness,  or  is  allied  to  madness,  or  is  a  disease,  no  def- 
inition is  given  either  of  criminality,  or  of  madness,  or 
of  disease;  and  therefore  the  truth  or  falsity  of  the  doc- 
trine cannot  be  examined  satisfactorily.  Until  these 
wants  are  supplied,  until  some  definition  is  given  of  the 
terms  employed,  until  some  evidence  is  offered  in  support 


2i4  CRIME  AND  CRIMINALS 

of  the  doctrine,  until  appeal  is  made  to  something  more 
substantial  than  the  ipse  dixit  of  amateurs,  it  would  be 
waste  of  time  to  bestow  serious  attention  on  the  doctrine 
that  the  criminal  is  a  kind  of  madman,  or  suffers  from  a 
disease  allied  to  madness. 

7.  We  are  now  to  examine  a  doctrine  of  the  nature  of 
the  criminal  that  rests  upon  very  different  ground,  and 
demands  most  careful  examination,  since  it  is  advanced 
with  great  ability,  with  great  moderation  of  statement, 
and  rests  upon  an  immense  mass  of  evidence  compiled 
by  many  hands  with  industry  extending  over  years,  evi- 
dence that  has  been  digested  and  arranged  with  conspic- 
uous ability  by  the  untiring  labor  of  Dr.  Goring. 

The  conclusion  arrived  at  by  Dr.  Goring  from  his  most 
painstaking  and  laborious  survey  of  data  furnished  by 
several  thousand  inmates  of  English  convict  prisons  is 
discrepant  from  all  those  that  have  been  described,  and 
is  this :  the  criminal  men — by  which  he  means  men  who 
have  been  convicted  of  crime  sufficiently  serious  to  be 
tried  in  a  superior  court,  that  is  to  say,  at  assizes  or 
quarter  sessions — do  differ  appreciably,  and  even  con- 
spicuously, from  the  mean  of  Englishmen  at  large.  The 
difference  is  not  the  difference  between  disease  and 
health;  still  less  is  it  a  difference  that  can  be  termed  in 
biological  language  a  "  sport,"  such  as  albinism  or  the 
possession  of  a  sixth  finger  or  toe  on  one  extremity; 
still  less  is  it  a  racial  peculiarity  inherent  in  a  criminal 
stock  and  descending  by  inheritance,  as  the  Jewish  or 
Japanese.  According  to  Dr.  Goring,  criminals,  in  the 
restricted  sense  in  which  he  uses  the  word,  do  as  a  class 
differ  in  both  physical  and  mental  characters  from  the 
rest  of  the  population;  but  they  differ,  not  specifically, 
but  selectively.  They  differ  in  possessing,  in  a  rather 
'higher  degree  than  the  average  or  the  mean,  certain 


CRIMINALS  215 

qualities  that  all  men  possess  in  some  degree.  They 
differ,  not  as  smutty  or  rusty  wheat  plants  differ  from  the 
healthy  wheat  plants  in  the  same  field,  still  less  as  the 
poppies  or  the  charlock  differ  from  the  wheat,  but  as  a 
collection  of  the  plants  with  the  shortest  straw  and  the 
least  fertile  ears  would  differ  from  the  rest  of  the  wheat 
plants  in  the  field.  They  are  a  separate  class,  but  a 
selected  class,  and  are  different  solely  because  they  are 
selected. 

It~will  be  seen  that  this  is  a  new  viewt  and  a  very 
important  view,  and  one  that,  if  it  is  correct,  should 
modify  our  estimation  and  treatment  of  criminals  in  very 
important  ways.  It  behoves  us  therefore  to  examine  it 
with  the  greatest  care. 

I  may  say  at  once  that  the  doctrine  seems  to  me  defect- 
ive in  some  very  important  respects;  but  before  I  pro- 
ceed to  examine  it  and  to  point  out  what  these  defects 
are,  I  desire  to  bear  testimony  to  the  immense  industry, 
labor,  and  care  that  Dr.  Goring  has  devoted  to  his  task, 
to  the  openness  of  mind  with  which  he  seems  to  have 
approached  it,  to  the  fairness  with  which  he  has  con- 
ducted it,  and  to  the  restraint  and  moderation  that  he 
displays  almost  throughout.  His  book,  The  English 
Convict,  is  in  its  manner  of  treating  the  subject  a  model 
of  the  statistical  method  applied  to  certain  data ;  but  Dr. 
Goring,  carried  away  by  enthusiasm  for  the  method  that 
he  handles  with  such  skill  and  dexterity,  claims  for  it 
more  than  its  due.  It  is  true  that  he  admits  that  "  in 
some  orders  of  observation  there  is  no  need  for  a  cal- 
culating mechanism  to  trace  and  prove  the  existence  of 
association,"  but  he  goes  on  to  say  that  "  the  precision 
and  validity  of  so-called  clinical  experience  depends  upon 
the  aptitude  for  memorizing  the  frequency  of  past  rela- 
tions, and  for  correctly  estimating  by  a  mental  statistical 


216  CRIME  AND  CRIMINALS 

process  the  probabilities  of  their  recurrence."  As  true 
for  comparatively  rare  occasions  this  may  pass,  but  as 
a  universal  assertion,  as  Dr.  Goring  states  it,  it  is  cer- 
tainly erroneous.  He  does,  indeed,  draw  the  distinction 
between  estimates  of  quality  and  estimates  of  degree, 
and  admits  verbally  that  in  the  former  "  the  disturbing 
effects  of  chance  associations  can  be  allowed  for  men- 
tally, and  without  aid  from  the  elaborate  meticulousness 
of  statistical  processes;"  but  the  admission  is  of  a  face- 
saving  character,  and  does  not  materially  influence  his 
faith  that  motley  is  the  only  wear,  biometrics  the  only 
method  of  obtaining  trustworthy  results  in  social,  bio- 
logical, and  medical  science.  "  Criminological  study," 
he  says,  "  whatever  branch  of  it  is  being  pursued,  and  by 
whatever  method  it  may  ultimately  proceed,  should  be 
based  upon,  and  originally  consist  in,  the  statistical  treat- 
ment of  facts  which,  in  their  crude  form  as  revealed  to 
direct  observation,  are  valueless  for  reconstruction." 
Again,  in  the  concluding  paragraph  of  his  book  he  says : 
"  to  obtain  the  truth,  our  appeal  must  be  made,  not  to  the 
opinions  of  descriptive  psychologists,  sociologists,  and 
criminologists,  but  to  the  facts  and  calculus  of  the  statis- 
tician. For  the  virtue  of  statistical  inquiry  is  just  this: 
that  its  conclusions,  whatever  they  may  be,  have  mathe- 
matical accuracy,  and  the  same  degree  of  reliability  as 
the  conclusions  of  an  exact  science." 

All  this  is  stated  far  too  absolutely.  Statistical  in- 
quiries and  calculations  such  as  those  laboriously  made 
by  Dr.  Goring  have  their  value,  and  in  certain  cases  and 
for  certain  purposes  their  value  is  considerable;  but  the 
statistical  method  is  far  from  being  the  only  method  by 
which  trustworthy  results  may  be  obtained;  and  the  statis- 
tical method  is  itself  liable  to  fallacies  that  may  seriously 
vitiate  its  results,  and  may  even  deprive  them  entirely  of 


CRIMINALS  217 

value — fallacies  that  its  advocates  and  practitioners  do 
not  appear  to  be  aware  of,  for  they  never,  as  far  as  I 
know,  take  them  into  account. 

It  should  be  unnecessary  to  insist  that  the  statistical 
method  is  not  the  only  method  that  yields  results  of 
scientific  value,  even  when  the  factors  estimated  are 
quantitative;  and  even  Dr.  Goring  does  not  claim  that 
it  is  the  only  method  of  obtaining  valuable  results  from 
quantitative  factors.  If  I  go  into  my  garden  one  autumn 
morning  and  find  that  the  thermometer  registers  two 
degrees  of  frost  as  having  occurred  in  the  night,  and  if 
I  find  that  all  my  unprotected  heliotropes  are  blackened 
and  dead,  I  can  infer  at  once,  without  any  statistical 
computation,  that  a  frost  of  two  degrees  of  severity  is 
fatal  to  heliotropes.  The  conclusion  is  incontestable  and 
inescapable.  It  is  derived  from  a  single  observation  or 
from  a  very  few  observations,  and  it  not  only  needs  no 
statistics  to  verify  it,  but  it  is  insusceptible  of  verification 
by  statistics;  and  it  is  a  strictly  quantitative  observation. 
The  result  manifestly  depends,  not  on  the  fact  of  frost 
having  occurred,  but  on  the  degree  of  frost  that  is  re- 
gistered. On  the  same  morning  I  find  my  dahlias  but 
slightly  or  not  at  all  affected,  and  I  infer  that  two  degrees 
of  frost  are  not  fatal  to  dahlias.  But  next  morning  my 
dahlias  are  all  blackened  and  collapsed,  and  now  I  find 
that  the  thermometer  registers  five  degrees  of  frost.  I 
infer,  and  the  inference  is  valid,  and  so  far  scientific,  that 
though  dahlias  will  endure  two  degrees  of  frost  with- 
out fatal  damage,  they  are  killed  by  five  degrees,  and 
this  again  is  an  aftair  of  degree  and  of  quantity  and  in- 
tensity. Yet  it  needs  no  statistical  basis,  no  calculation  of 
means  or  probable  errors  for  its  establishment.  It  is 
valid  on  the  face  of  it. 

The    importance   of   Darwin's    observations    on    the 


218  CRIME  AND  CRIMINALS 

Variation  of  Animals  and  Plants  under  Domestication 
can  scarcely  be  exaggerated.  They  have  modified  for 
all  time  our  estimates  of  organic  phenomena,  and  in- 
directly of  social  phenomena  also;  and  they  were  almost 
wholly  quantitative  estimates.  Many  of  them  were  based 
upon  measurement;  all,  or  nearly  all,  were  estimates  of 
more  or  of  less  in  length,  or  breadth,  or  thickness,  or 
weight,  or  some  other  quantity;  and  Darwin  did  not  em- 
ploy the  statistical  method.  Yet  his  observations  have 
never  been  impugned;  and  though  attempts  have  been 
made  to  belittle  their  value,  the  attempts  have  failed. 
He  revolutionized  our  mode  of  regarding  organic  phe- 
nomena, and  this  he  did  without  employing  the  statistical 
method.  The  only  observations  in  which  Darwin  em- 
ployed the  statistical  method  were  those  upon  earth- 
worms, and  in  this  he  employed  the  method  only  in  a 
crude  and  elementary  form;  and  however  interesting  and 
valuable  these  observations  may  be,  they  do  not  compare 
in  either  respect  with  those  on  which  he  based  his  doc- 
trines of  natural  selection,  of  the  origin  of  species,  and 
of  the  descent  of  man.  Clearly,  therefore,  to  assert  that 
to  obtain  the  truth,  even  in  quantitative  investigations,  an 
appeal  must  be  made  to  the  facts  and  calculus  of  the 
statistician  is  a  very  great  exaggeration. 

Dr.  Goring's  second  assertion,  that  the  conclusions  of 
statistical  inquiry  have  mathematical  accuracy,  and  the 
same  degree  of  reliability  as  the  conclusion  of  an  exact 
science,  is  true  in  a  sense,  but  it  may  be  extremely  and 
fatally  misleading.  It  is  true  in  the  sense  that  if  the 
calculations  are  correctly  performed,  the  conclusions  will 
be  mathematically  accurate  deductions  from  the  data; 
but  no  amount  of  accuracy  in  the  calculations  or  in  the 
statement  of  conclusions  will  secure  that  the  data  have 
been  faithfully  observed,  or,  if  they  have  been  faithfully 


CRIMINALS  219 

observed,  that  they  can  be  relied  upon.  It  is  certainly 
untrue  that  the  conclusions  of  statistical  inquiry  have  the 
same  degree  of  reliability  as  the  conclusion  of  an  exact 
science.  They  may  be  misleading;  they  may  be  utterly 
false  and  worthless. 

Dr.  Goring  is  careful  to  warn  us  that  his  favorite 
method  can  give  us  only  relative  and  never  absolute 
results.  The  whole  virtue  of  statistics,  he  says,  lies  in 
comparison.  If  this  is  so,  then  it  is  of  the  first  necessity 
that*  the  data  should  be  comparable;  but  in  statistical 
inquiry,  and  in  the  compilation  of  elaborate  statistics, 
the  data  are  not  always  comparable.  Take,  for  instance, 
statistics  of  drunkenness,  as  displayed  in  the  comparison 
of  the  prevalence  of  drunkenness  in  one  district  with  its 
prevalence  in  another.  Such  a  comparison  may  be  made 
by  comparing  the  number  of  convictions  for  drunken- 
ness in  the  one  town  or  country  or  district  with  the 
number  of  convictions  in  the  other.  The  method  would 
seem  at  first  sight  eminently  fair  and  just,  and  calculated 
to  yield  conclusions  "  of  the  same  degree  of  reliability 
as  the  conclusions  of  an  exact  science;"  but  is  it  really 
so?  Let  us  consider.  Suppose  that  in  the  one  district 
the  Chief  Constable  is  a  fanatical  teetotaler,  or  the 
majority  of  the  Watch  Committee  are  of  this  way  of 
thinking.  Suppose  the  magistrates  also  are  tarred  with 
the  same  brush.  The  results  will  be  that  the  police  will 
be  stimulated  to  arrest  or  summon  every  man  and  wo- 
man who  can  plausibly  be  considered  a  little  the  worse 
for  drink,  and  that  every  such  man  and  woman  will  ap- 
pear on  the  police  sheet  as  a  case  of  drunkenness,  and  will 
be  so  recorded  in  the  register  of  police-court  convictions. 
In  the  other  district,  the  Watch  Committee  may  have 
no  bias  in  favor  of  teetotalism;  the  Chief  Constable  may 
be  a  large-minded  man  of  the  world;  the  magistrates  also 


220  CRIME  AND  CRIMINALS 

may  be  reluctant  to  record  convictions  for  trivial  offenses, 
and  prone  to  discharge  with  a  caution  and  a  little  fatherly 
advice  those  who  have  been  "  market  merry,"  or  have 
been  celebrating  a  wedding  or  a  christening  too  hilari- 
ously. In  such  a  district  the  police  will  know  that  they 
will  obtain  no  credit  for  excess  of  zeal  in  arresting  or 
summoning  people  who  are  half  seas  over.  They  will 
be  inclined,  if  a  man  has  had  a  little  too  much,  but  is 
doing  no  harm  and  not  making  himself  too  much  of  a 
nuisance,  to  place  him  in  the  care  of  his  friends,  or  even 
to  see  him  home  and  leave  him  to  the  punishment  he  will 
receive  from  his  wife's  tongue.  It  is  manifest  enough 
that  to  compare  the  number  of  convictions  for  drunken- 
ness in  this  district  with  the  number  in  the  other  would 
give  no  just  idea  of  the  comparative  prevalence  of  drunk- 
enness in  the  two  districts.  The  statistics,  so  far  from 
having  the  same  reliability  as  the  conclusions  of  an  exact 
science,  would  be  utterly  unreliable  and  misleading. 

Dr.  Goring's  statistics  are  apt  to  mislead,  and  almost 
necessarily  must  mislead,  in  another  respect,  although,  to 
do  him  justice,  he  does  something  to  guard  us  against 
being  misled  by  them.  They  refer,  as  he  points  out  re- 
peatedly, only  to  persons  who  have  been  convicted  of 
serious  crime;  yet  he  constantly  speaks  of  them  as  ap- 
plying to  criminals  as  a  whole.  In  short,  his  investiga- 
tions do  not  concern  criminals  as  a  class  at  all.  They 
concern  only  convicts.  Yet  throughout  his  treatise  he 
speaks  not  of  convicts,  but  of  criminals.  The  result  of 
this  may,  for  aught  we  know,  be  extremely  misleading. 
It  is  almost  certainly  misleading  to  some  extent,  and  it 
may  be  extremely  misleading.  One  of  the  most  salient 
results  of  Dr.  Goring's  statistics  is  to  show  beyond  doubt 
that  criminals  who  are  convicted  of  serious  crimes  are 
upon  the  whole  inferior  in  intelligence  to  the  general 


CRIMINALS  221 

population ;  but  is  it  not  manifest  that  of  the  whole  body 
of  criminals  those  who  are  defective  in  intelligence  will 
be  especially  liable  to  conviction,  while  those  of  average 
and  superior  intelligence  will  be  relatively  immune  from 
conviction — will  escape  conviction  more  often  and  more 
completely?  Dr.  Goring  shows  that  criminals  convicted 
of  serious  crime  are  selected  by  their  inferior  intelligence 
from  the  whole  body  of  the  population;  but  is  it  not  ex- 
tremely likely  that  they  are  selected  by  the  same  character 
from^the  whole  body  of  criminals  ?  In  every  year,  if  we 
may  take  the  year  1911  as  fairly  representative,  more 
than  97,000  indictable  offenses  are  reported  to  the  police, 
and  few  more  than  13,000  are  convicted  at  Quarter  Ses- 
sions or  Assizes  of  the  commission  of  such  offenses.  In 
fewer  than  one-seventh  of  these  offenses,  therefore,  is 
the  perpetrator  convicted;  and  although  it  is  of  course 
possible  that  in  some  cases  he  may  be  convicted  of  some 
other  offense  committed  in  the  same  year,  yet  there  must 
remain  a  large  but  very  uncertain  number  of  offenders 
who  are  not  convicted,  and  not  being  convicted  do  not 
appear  in  Dr.  Goring's  statistical  tables.  As  guides  to 
the  physique,  mental  peculiarities,  heredity,  education, 
and  so  forth  of  the  entire  body  of  criminals,  these  tables 
are  therefore  utterly  untrustworthy.  They  are  statistics 
relating  not  to  the  whole  body  of  criminals,  but  to  fewer 
than  15  per  cent,  of  all  criminals,  or  at  least  to  fewer 
than  15  per  cent,  of  the  crimes  perpetrated;  and  the 
strong  presumption  is  that  they  refer  to  a  selected  class 
of  criminals,  and  not  to  a  fair  average  sample,  The 
very  fact  that  they  have  all  been  convicted  selects  and 
differentiates  them  from  the  total  of  criminals,  presum- 
ably selects  them  by  inferiority  of  intelligence,  and  per- 
haps, for  all  we  know,  selects  them  by  inferiority  of 
physique.  If  all  the  85  per  cent,  of  perpetrators  of  in- 


222  CRIME  AND  CRIMINALS 

dictable  crimes  who  escape  conviction  for  those  crimes 
escape  conviction  altogether,  the  statistics  of  the  whole 
class  of  criminals  are  hopelessly  vitiated,  and  command 
no  confidence  at  all.  As  we  do  not  know  what  proportion 
of  this  85  per  cent,  ultimately  become  convicts,  we  can- 
not make  the  necessary  allowance,  and  must  remain  in 
complete  uncertainty.  Dr.  Goring's  statistics  of  crim- 
inals are  not  statistics  of  criminals.  They  are  statistics 
of  convicted  criminals,  a  very  different  class,  and  a 
selected  class;  and  though  it  may  be  interesting  and  im- 
portant to  have  these  statistics  of  convicts,  and  though 
the  conclusions  that  Dr.  Goring  draws  may  be  incontest- 
able— I  do  not  contest  them — in  their  application  to 
convicts,  yet  if  they  are  applied  to  criminals  in  their 
totality,  unconvicted  as  well  as  convicted,  they  require 
very  serious  modification.  Of  the  85  per  cent,  of  per- 
petrators of  indictable  offenses  we  know  nothing  at  all, 
and  the  only  conjecture  we  are  justified  in  making  with 
respect  to  them  is  that  they  are  probably  more  intelligent 
than  those  from  whom  Dr.  Goring's  data  are  drawn. 
Their  superior  intelligence  may  go  far  to  balance  the 
inferior  intelligence  of  those  to  whom  his  statistics  refer, 
and  so,  for  aught  we  know,  may  their  stature  go  far  to 
raise  the  mean  stature  of  his  convicts  towards  the  normal. 
However  accurate  his  conclusions  may  be  with  respect  to 
convicts,  it  is  clear  that  they  do  not  apply  to  the  im- 
mensely larger  number  of  criminals  who  commit  minor 
offenses,  and  are  tried  and  convicted  in  courts  of  summary 
jurisdiction.  They  apply  only  to  a  selected  class  of  a 
severely  selected  class  of  all  offenders,  and  this  class 
within  a  class  is  but  a  very  small  fraction  of  offenders  as 
a  whole. 

8.    The  notion  of  criminality  and  of  the  nature  of  the 
criminal  that  I  shall  myself  put  forward  for  considera- 


CRIMINALS  223 

tion  differs  from  all  the  foregoing,  from  Dr.  Goring's 
scarcely  less  than  from  Lombroso's.  It  seems  to  me 
that  all  these  doctrines,  whatever  modicum  of  truth  they 
may  contain,  fail  to  take  into  account  an  element  of  vital 
importance,  which  has  a  very  strong  influence  upon  every 
offender  in  the  commission  of  every  offense.  According 
to  this  doctrine,  the  commission  of  every  offense  is  a 
function  of  two  variables.  It  resembles  every  other  form 
and  phase  of  conduct  in  being  the  product  of  two  factors, 
which  enter  into  it  in  the  most  various  proportions.  In 
some  offenses  the  gravamen  lies  almost  wholly  upon  one 
of  these  factors;  in  others  it  lies  almost  wholly  upon  the 
other.  In  every  offense,  the  more  of  the  one  factor  that 
is*  present,  the  less  of  the  other  is  needed  to  bring  about 
the  result,  the  commission  of  the  offense.  When  both  are 
absent,  or  present  in  but  trifling  degree,  no  offense  will 
be  committed.  When  one  is  present  without  the  other, 
no  offense  will  be  committed.  When  one  is  present  in 
high  degree,  it  will  need  but  a  minimum  of  the  other  to 
ensure  the  commission  of  the  offense;  and  when  one  is 
deficient,  more  of  the  other  will  be  needed  to  bring  about 
the  result;  but  each  factor  is  present  in  the  commission 
of  every  offense,  and  in  the  total  absence  of  either  no 
offense  will  be  committed.  In  this  respect,  and  in  this 
respect  only,  crime  resembles  insanity,  for  insanity  also 
requires  two  factors  and  only  two  for  its  production,  and 
in  insanity  also  the  proportion  of  each  that  is  necessary 
to  produce  the  result  is  fixed  by  the  foregoing  rules;  but 
in  crime  and  insanity  the  factors  are  different,  though 
they  may  be  called  by  the  same  names.  They  may  be 
called  by  the  same  names  because,  though  they  are  dif- 
ferent, they  are  closely  analogous.  My  doctrine  of  the 
causation  of  insanity  is  that  it  is  due  in  varying  propor- 
tions to  the  two  factors  of  heredity  and  stress — to  the 


i 


224  CRIME  AND  CRIMINALS 

stress  of  circumstances  acting  upon  an  innate  constitu- 
tion ;  to  varying  proportions  of  heredity  and  environment. 
My  doctrine  of  crime  is  so  similar  that  it  may  be  for- 
mulated in  the  same  words,  though  the  words  will  not 
have  the  same  significant  contents.  Crime — and  in  crime 
I  now  include  offenses  of  all  kinds — is  due  to  temptation 
or  opportunity,  the  environment  factor  or  stress,  acting 
upon  the  predisposition  of  the  offender,  the  inherent  or 
constitutional  factor.  The  more  potent  the  one  factor, 
the  less  of  the  otHer  will  be  needed  to  bring  about  the 
result.  A  very  powerful  and  alluring  temptation  will 
break  down  the  virtue  of  even  a  very  moral  person,  who 
would  not  succumb  to  any  ordinary  temptation.  A  thor- 
oughly immoral  person,  inured  to  crime,  will  require 
scarcely  any  temptation — no  more,  in  fact,  than  amounts 
to  opportunity — to  induce  him  to  commit  crime;  but 
without  some  remnant,  some  vestige,  of  criminal  procli- 
vity the  first  would  not  succumb  to  the  temptation,  how- 
ever powerful  it  might  be;  and  without  opportunity  the 
second  would  remain  crimeless,  however  strong  his  pro- 
clivity to  crime.  For  crime,  as  for  madness,  every  man 
has  his  breaking  strain,  and  will  give  way  under  stress 
if  the  stress  is  sufficiently  powerful  and  of  the  right  kind. 
St.  Anthony  was  either  of  a  cold,  misogynous  disposition, 
constitutionally  indifferent  to  sensual  passion,  as  some 
men  and  many  women  are,  or  the  devil  was  maladroit, 
and  did  not  appear  in  sufficiently  alluring  guise,  or  did 
not  continue  his  allurements  long  enough.  Some  thieves 
that  I  have  known  have  had  so  strong  a  constitutional 
proclivity  to  theft  that  they  would  steal  even  under  the 
very  eyes  of  their  guardians,  and  although  they  knew 
that  instant  punishment  and  restitution  must  follow;  but 
still,  they  could  not  have  stolen  if  there  had  been  nothing 
portable  to  steal;  they  would  not  have  stolen  unless 


CRIMINALS  225 

tempted  by  the  accessibility  of  certain  portable  objects 
peculiarly  attractive  to  their  cupidity.  So  that  in  all 
crimes,  as  aforesaid,  temptation  acting  on  proclivity, 
proclivity  subject  to  temptation  or  that  milder  form  of 
circumstance  that  we  call  opportunity,  are  to  be  recog- 
nized as  the  necessary  condition  and  the  necessary  cause 
respectively. 

It  is  a  curious  illustration  of  the  blindness  of  doctrin- 
aires to  the  obvious  that  they  should  have  roamed  so  far 
afield  as  to  invoke,  as  causes  of  crime,  such  extremely  im- 
probable factors  as  bad  sanitation  in  the  house  of  the 
criminal,  and  lack  of  acquaintance  with  the  Latin  gram- 
me (which  is  what  is  commonly  meant  by  want  of  educa- 
tion), when  such  a  factor  as  temptation  must  have  been 
familiar  in  the  experience  of  them  all,  and  they  must 
have  known  that  it  is  a  frequent  factor  in  the  experience 
of  every  human  being;  but  such  is  the  nature  of  doctrin- 
aires. In  medicine — especially  in  that  branch  of  medicine 
that  deals  with  madness,  with  which  I  am  most  familiar, 
— in  philosophy,  in  logic,  in  education,  and  in  other  mat- 
ters into  which  doctrinaires  have  obtruded  themselves,  it 
is  always  the  obvious  that  is  overlooked  and  ignored. 
Even  Dr.  Goring,  able  and  open-minded  as  he  shows 
himself  to  be,  never  once  mentions  temptation  in  the 
whole  of  his  large  book  upon  criminals  and  the  causa- 
tion of  crime. 

Such  alleged  factors  in  crime  as  bad  homes,  defective 
sanitation,  want  of  education,  receding  foreheads,  long 
or  short  or  medium  noses,  an  angel  face,  and  the  look  of 
a  bird  of  prey,  all  require  proof  before  they  can  be  ac- 
cepted as  actual  factors;  but  the  two  factors  that  I  allege 
need  no  proof.  They  commend  themselves  at  once  to 
every  reasonable  mind  as  manifestly  and  necessarily 
valid.  Their  proof  is  in  the  daily  experience  of  every 


226  CRIME  AND  CRIMINALS 

human  being.  Crime  in  the  technical  sense — that  is  to 
say  indictable  crime — is^butone~species  of  the  class  of 
delinquencies,  or  offenses  against  the  law.  Offense 
against  the  law  is,  again,  but  one  species  of  the  larger 
class  of  wrong  or  immoral  or  dishonorable  acts,  which 
range  in  turpitude  from  the  merest  childish  peccadilloes 
to  the  gravest  crimes  known  to  the  law,  crimes  that 
nothing  short  of  the  death  of  the  offender  will  expiate. 
However  they  may  differ  in  gravity,  they. are  alike  in 
being  infractions  of  the  conscience  of  the  offender.  He 
f  who  does  a  wrong  act,  not  knowing  that  it  is  wrong,  does 
?  no  wrong.  It  was  the  underlying  appreciation  of  the 
truth  of  this  unformulated  maxim  that  led  the  judges  in 
1843  to  declare  that  even  a  madman  who  does  wrong, 
knowing  that  it  is  wrong,  is  responsible — that  is  to  say, 
punishable — for  his  act.  What  constitutes  the  animus 
nocendi  is  the  consciousness  that  the  act  is  wrong,  and 
this  consciousness  is  independent  of  the  gravity  of  the 
offense.  We  of  the  Church  of  England  confess  daily  or 
weekly  in  the  order  for  Morning  and  Evening  Prayer 
that  we  have  done  those  things  that  we  ought  not  to 
have  done,  and  that  we  have  left  undone  those  things 
that  we  ought  to  have  done,  and  for  most  of  us  there  is 
truth  in  the  daily,  or  at  any  rate  in  the  weekly,  confession. 
The  offense  committed  may  be,  and  in  very  many  persons 
is,  but  the  merest  peccadillo,  the  merest  infringement  of 
a  needless  scrupulosity  of  honor;  but  the  point  is  that, 
however  trifling  or  however  grave  the  offense,  its  turpi- 
tude consists  in  yielding  to  temptation.  If  there  were  no 
temptation,  there  would  be  no  offense.  That  is  the  uni- 
versal experience  of  mankind,  and  it  needs  no  proof,  no 
insistence,  no  evidence  beyond  universal  individual  experi- 
ence, to  establish  that  that  which  is  true  of  the  less  grave 
offenses,  which  make  even  the  saint  in  some  degree  a 


CRIMINALS  227 

sinner,  is  true  of  the  graver  offenses  that  bring  the  offen- 
der by  way  of  the  assize  court  into  the  convict  prison  or 
to  the  gallows.  It  is  yielding  to  temptation  that  con- 
stitutes criminality. 

Nor  does  it  need  any  proof  to  show  that  whether  a 
person  will  or  will  not  yield  to  a  given  temptation  de- 
pends upon  his  mental  constitution  and  proclivities.  It 
depends  in  the  first  place  upon  the  intensity  of  the  desire 
to  which  the  particular  temptation  appeals;  and  different 
desires  have  very  different  force  in  different  people.  The 
covetous  man,  the  self-indulgent  and  lazy  man,  will  yield 
more  readily  to  the  temptation  to  unlawful  gain.  The 
passionate  man,  the  vindictive  man,  will  yield  more 
readily  to  the  temptation  to  inflict  injury  upon  his  enemy. 
The  lecherous  man  will  be  more  prone  to  commit  sexual 
offenses;  and  all  men  will  be  more  prone  to  commit  of- 
fenses  in  proportion  as  they  have  accustomed  themselves 
to  disregard  the  restraints  of  conscience  and  satisfy  their 
desires  without  regard  to  the  welfare  of  other  people. 
All  this  needs  no  proof.  It  is  part  of  the  common  know- 
ledge of  human  nature  that  we  all  acquire  by  our  own 
experience  of  our  own  minds  and  conduct,  and  by  com- 
mon observation  and  interpretation  of  the  conduct  of 
others.  It  is  as  nearly  axiomatic  as  an  assertion  with 
respect  to  human  mind  and  conduct  can  be.  It  is  self- 
evident,  and  neither  needs  proof  nor  is  susceptible  of 
formal  proof.  • 

Like  other  general  and  abstract  doctrines,  this  is  of  the 
greatest  importance  in  its  practical  application.  The 
ancient  doctrine  of  original  sin,  and  of  the  danger  of 
Divine  vengeance  that  the  sinner  brought  not  only  upon 
himself  but  upon  all  who  were  connected  with  him,  led 
directly  to  the  savage  and  inhuman  punishments  that 
were  inflicted  upon  evil-doers  as  long  as  this  doctrine  pre- 


'228  CRIME  AND  CRIMINALS 

vailed.    The  doctrine  of  Beccaria  and  BenthamT  that  tJie 

true  purpose  of  punishment  is  to  provide  a  motive  count- 
erbalancing  the  motives  to  crime,  and  that  certainty  and 
promptitude  of  punishment  are  more  effectual  in  this 
respect  than  severity,  led  directly  to  a  mitigation  of  the 
ancient  savage  penal  code.  The  speculative  folly  of  Lom- 
broso  led  directly  to  the  practical  folly  of  some  Ameri- 
can penitentiaries;  and  logically,  the  anthropometric 
deductions  of  Dr.  Goring  should  lead  to  a  policy  of  per- 
manent segregation  of  the  20  per  cent,  of  convicts  who 
are  weak-minded,  and  gives,  as  far  as  I  can  discern,  no 
indication  towards  what  is  to  be  done  with  the  remaining 
80  per  cent.  My  doctrine,  if  accepted  and  acted  upon, 
should  modify  practice  in  many  directions,  but  specially 
in  the  direction  of  inculcating  and  fostering  the  obliga- 
tion of  duty,  and  in  efforts  to  raise  the  ethical  standard  of 
the  community.  These  precepts  savor,  it  is  true,  of  the 
platitudinous,  and  in  their  bald  and  general  statement 
they  may  be  so;  but  they  are  susceptible  of  practical  ap- 
plication in  various  ways,  as  I  shall  endeavor  to  show. 
f  According  to  this  doctrine  of  mine,  all  men  are  by  na- 
>ture  potential  criminals,  since  all  are  actuated  by  instinc- 
tive desires  that  urge  their  possessor  to  seek  the  grati- 
fication of  them,  and  since  no  man  has  yet  attained  to 
the  perfection  of  socialization  that  we  witness  in  the 
social  insects,  in  whom  the  gratification  of  selfish  desire 
harmonizes  completely  with  the  common  welfare — in 
whom  if  we  may  judge  by  their  conduct;  selfish  desire,  the 
gratification  of  which  is  incompatible  with  the  common 
welfare,  does  not  exist.  In  them,  as  far  as  we  can  judge, 
{the  gratification  of  individual  desires  never  conflicts  with 
/  the  common  welfare,  and  pleasurable  action  becomes 
7  merged  into  duty  and  identified  with  it.  In  the  human 
race,  pleasure  and  duty  are  in  frequent  conflict,  and  crim- 


CRIMINALS  229 

inality  consists  in  giving  the  rein  to  pleasure  when  pleas- 
ure conflicts  with  duty.     When  I  say  that  every  man  is 
a  potential  criminal,  I  mean  that  every  man  experiences 
this  conflict  from  time  to  time.    To  every  man  the  choice 
is  occasionally  presented  of  gratifying  his  own  desire  and 
thereby  obtaining  pleasure  at  the  cost  of  others'  welfare, 
or  of  subordinating  his   own  pleasure  to   the  common 
good.     He  may  be  of  so  saintly  or  so  public-spirited  a 
disposition  that  in  fact  he  never  transgresses;  but  this 
shows  only  that  the  peculiar  temptation  to  which  he  is 
most  liable  has  not  assailed  him  with  sufficient  intensity. 
The  mere  fact  that  the  struggle  takes  place,  the  mere*"^ 
iatt  that  he  must  exercise  a  choice  to  do  good  rather  than/ 
evil,  constitutes  him  a  criminal  in  posse  though  he  may/ 
never  be  a  criminal  in  esse;  for  manifestly,  as  long  astx/ 
there  is  room  for  choice,  the  choice  may  fall  on  either 
course.     If  there  were  no  room  for  choice,  if  he  were 
perfectly  socialized,  if  his  desire  for  self-gratification  al-  \ 
ways  harmonized  with  the  common  welfare,  if  his  only  C 
pleasure  were  in  duty,  then  there  would  be  no  possibility  j 
of  his  doing  wrong — and  no  merit  in  his  doing  right. 
Then,  and  then  only,  would  he  cease  to  be  a  potential 
wrong-doer;  and  as  no  man  has  yet  attained  to  this  per- 
fection of  socialization,  no  man  is  free  from  the  potential-  £ 
ity  of  doing  wrong,  and  so  becoming  an  offender  against  ' 
the  law. 

Thus  the  doctrine  leads  by  another  route,  the  a  priori 
route,  to  the  same  conclusion  as  Dr.  Goring's  statistics. 
It  teaches  that  the  convict,  and  not  only  the  convict  but 
the  criminal,  and  not  only  the  technical  criminal  but  the 
offender  of  every  degree,  is  but  a  normal  man,  whose 
criminality  or  delinquency  consists,  not  in  any  qualitative 
difference,  either  mental  or  physical,  between  himself 
and  the  virtuous  generality  of  mankind,  but  solely  in 


230  CRIME  AND  CRIMINALS 

quantitative  difference  if  there  is  any  difference  at  all. 
[n  the  delinquent,  certain  desires  are  stronger  and  certain 
others  are  weaker  than  in  the  virtuous  man.  In  the  one 
"tEe  control  of  the  will  over  the  gratification  of  selfish 
desires  at  others'  expense  is  weaker  than  in  the  other, 
either  by  native  constitution,  or  by  difference  of  training, 
or  by  difference  of  practice  and  experience.  In  most 
cases  of  serious  delinquency,  such  constitutional  differ- 
ences, either  innate  or  the  result  of  habit,  etc.,  do,  no 
doubt,  exist;  but  in  some  cases  of  serious  criminality, 
and  in  very  many  cases  of  minor  delinquency  the  de- 
linquent is  not  in  any  of  these  respects  below  the  mean 
of  virtuous  mankind,  and  may  even  be  above  it;  but  he 
has  been  subjected  to  temptation  beyond  what  his  fellows 
have  had  to  bear,  and  he  has  succumbed  to  it  as  they 
would  have  had  to  succumb  to  it,  and,  it  may  be,  later 
and  more  reluctantly  than  those  of  mean  standard  would 
have  succumbed.  So  that  in  all  things,  as  aforesaid,  the 
criminal  and  the  minor  offender  are  normal  human  be- 
ings; normal,  but  differing  in  some  respect,  as  all  men 
differ  in  some  respect,  from  the  mean  standard  or  aver- 
age of  mankind.  The  delinquent  may  differ  in  constitu- 
tion. He  may  have  some  desires  or  passions  stronger 
and  some  weaker  than  average  man.  He  may  be  less 
intelligent,  or  may  have  less  power  of  self-control.  He 
may  have  been  worse  brought  up,  or  never  trained  in 
self-control  or  had  his  sense  of  duty  developed,  and  in 
any  of  these  and  other  ways  may  differ  from  average 
man  in  constitution;  or  he  may  have  been  subject  to 
overpowering  temptation,  and  thus  differ  in  experience 
from  average  man;  but  whatever  his  differences,  they 
are  differences  only  of  degree.  He  differs  from  average 
man  or  from  the  mean  of  mankind  in  precisely  the  same 
ways  as  all  other  men  differ  from  the  average  or  from 


CRIMINALS  231 

the  mean — in  the  same  ways,  and  to  extents  that  differ 
with  each  criminal  as  they  differ  with  every  non-criminal. 
The  difference  between  the  criminal  and  the  non-criminal 
is,  in  short,  first  in  the  combination  in  various  degrees 
of  qualities  that  both  and  all  possess  in  common,  and 
second  that  the  criminal  is  subjected  to  temptation  that, 
relatively  to  his  combination  of  qualities,  is  excessive. 
It  may  be  a  temptation  that  would  be  no  temptation  to 
the  average  man.  It  may  be  a  temptation  that  would 
be  no  temptation  to  a  differently  constituted  criminal;  but 
relatively  to  the  particular  person  to  whom  the  tempta- 
tion is  presented,  it  is  excessive.  It  reaches  his  breaking 
strain,  and  he  gives  way.  The  breaking  strain  differs  in 
different  people,  and  in  the  same  person  is  different  for 
different  temptations;  but  every  one  has  his  breaking 
strain  in  some  direction  or  other,  and  if  in  this  direction 
he  is  tempted  beyond  his  strength,  he  will  fall.  What 
else  is  the  sense,  what  else  is  the  meaning,  of  Baxter's 
celebrated  saying:  "There,  but  for  the  grace  of  God, 
goes  Richard  Baxter?"  Baxter  knew  the  human  heart. 
He  was  a  man  of  irreproachable  life,  a  saint;  but  he 
knew  he  had  his  breaking  point,  and  he  thanked  God 
that  no  temptation  had  ever  reached  it.  Such  is  in  my 
view  the  constitution  of  the  criminal,  and  such  the  oc- 
casion of  his  lapse  into  crime.  In  the  habitual  criminal 
the  breaking  point  is  low,  and  is  frequently  reached;  in 
the  saint  it  is  high,  and  is  in  a  very  different  region  of 
his  mental  constitution ;  but  in  both  a  breaking  point  there 
is,  and  whether  he  breaks  down  or  not  depends  on  the 
strength  of  the  temptation  to  which  he  is  subjected,  on 
the  strength  of  the  desire  to  which  the  temptation  ap- 
peals, and  on  the  strength  of  his  fortitude  to  withstand 
the  temptation.  But  for  the  absence  of  sufficient  tempta- 
tion of  the  right  kind,  every  man  is  a  criminal. 


CHAPTER  VIII 

KINDS  OF  CRIMINALS 

FROM  what  has  been  said  in  the  last  chapter  it  follows 
that  criminals  may  be  graded  into  classes  according  as 
the  breaking  point  is  low  or  high,  and  may  be  grouped 
into  a  different  set  of  classes  according  to  the  part  of  the 
mental  or  constitutional  make-up  in  which  the  breaking 
point  that  is  reached  is  situated.  In  other  words,  we  may 
divide  criminals  according  to  the  ease  with  which  they 
succumb  to  temptation,  or  according  to  the  kind  of  tempt- 
ation to  which  they  succumb;  and  both  classifications 
are  important. 

He  whose  breaking  point  is  low,  and  who  easily  suc- 
cumbs to  temptation,  will  frequently  succumb  to  temp- 
tation and  become  an  habitual  criminal.  He  whose 
breaking  point  is  relatively  high,  or  whose  low  breaking 
point  is  in  a  region  not  much  exposed  to  temptation, 
will  seldom  succumb,  and,  if  he  becomes  a  criminal  at  all, 
will  be  only  an  occasional  criminal.  Hence  by  this  mode 
of  classification  we  form  two  primary  classes  of  criminals, 
the  habitual  criminal  and  the  occasional  criminal. 

Habitual  criminals  are  of  two  main  classes,  each  of 
which  is  again  divisible  into  two  by  the  application  of  the 
same  differentia.  The  first  division  is  made  according 
to  whether  the  criminal  has  an  active  criminal  propensity 
which  impels  him,  usually  from  the  earliest  age,  to  the 
commission  of  crime,  and  which  no  circumstances  can 
mitigate;  or  whether  he  drifts  into  crime  quasi-passively, 
as  the  course  of  least  resistance  and  the  easiest  way  of 
332 


KINDS  OF  CRIMINALS  233 

making  his  living,  and  may  be  reformed  by  appropriate 
measures  if  he  is  taken  in  hand  early  enough. 

Criminals  of  the  first  of  these  classes  are  true  "  in- 
stinctive "  criminals.  Their  criminality  appears  to  be 
innate;  at  any  rate,  it  shows  itself  at  a  very  early  age. 
They  are  born  with  desires  and  aversions,  with  a  peculiar 
mental  constitution,  with  a  way  of  regarding  themselves 
and  others,  that  of  itself  tends  very  strongly  to  plunge 
them  into  crime,  and  that  no  training,  no  education,  no 
care  in  upbringing,  no  system  of  rewards  and  punish- 
ments, has  any  appreciable  effect  in  modifying.  Such 
persons  appear  sporadically  in  normal  families  of  good 
social  position,  of  law-abiding  disposition,  whose  other 
members — fathers,  mothers,  brothers,  sisters,  and  more 
remote  relatives — are  upright,  moral,  and  socially  nor- 
mal members  of  society.  In  the  language  of  breeders, 
criminals  of  this  class  are  "  sports."  They  are  aberrant 
specimens  of  the  race,  as  are  albinos,  or  persons  born 
with  hare-lip  or  cleft  palate  or  without  arms  or  legs. 
As  in  these,  the  development  is  deficient.  It  falls  con- 
spicuously short  of  the  normal  in  one  particular  respect. 
It  is  a  defect,  not  of  pigment,  or  of  structure,  but  of  a 
mental  faculty,  of  what  is  called  "the  moral  sense  " — 
that  is  to  say,  of  the  social  instinct.  Certain  fundamental 
instincts  are  born  in  all  normal  persons.  The  instincts 
to  suck,  to  grasp,  to  convey  to  the  mouth  what  is  grasped, 
to  cry,  all  show  themselves  in  infancy,  and  show  them- 
selves in  all  normal  children,  irrespective  of  education 
and  training.  In  later  life,  new  instincts,  which  also  we 
may  regard  as  innate,  come  into  play.  We  may  regard 
them  as  innate  because  they  arise  spontaneously  in  every 
one  as  soon  as  a  certain  age  is  attained.  I  use  the  term 
innate  in  this  sense,  and  not  as  implying  any  hypothesis 
as  to  their  origin.  In  this  way  at  adolescence  the  instincts 


234  CRIME  AND  CRIMINALS 

of  courtship  and  the  other  instincts  of  sex  come  into 
being.  From  a  very  early  age  the  female  displays  the 
instinct  of  motherhood.  In  both  sexes  arise  the  instinct 
of  acquisition  and  accumulation;  and  among  other  later 
appearing  instincts  are  the  social.  The  most  elementary 
of  these  is  the  primitive  desire  for  companionship  and 
fellowship,  and  involved  and  implied  in  this  is,  as  has 
already  been  shown,  the  instinct  of  forbearance,  of  con- 
sideration for  one's  fellows — in  other  words,  of  duty 
towards  them.  This  instinct  is  undoubtedly  innate  in  the 
sense  already  defined  of  arising  spontaneously  when  a 
certain  stage  of  development  is  reached ;  though,  like  the 
instinctive  actions  of  standing  and  walking,  it  needs  a 
certain  amount  of  training  and  education — more  than 
these  do — for  its  full  development.  It  is  this  instinct 
of  forbearance  and  duty  towards  other  members  of  the 
society  that  is  deficient  in  the  instinctive  criminal.  In 
him  it  is  altogether  or  almost  altogether  wanting  in  his 
mental  make-up,  just  as  in  other  persons  the  arms  or  the 
legs  are  wanting  in  the  physical  make-up.  From  the 
earliest  age  he  is  wholly  or  almost  wholly  wanting  in 
consideration  and  forbearance  towards  other  people ;  and 
as  he  has  not  the  rudiments  of  these  qualities,  they  can- 
not be  cultivated  in  him.  He  is  wholly  selfish,  and  with- 
out scruple  or  hesitation  will  take  all  and  give  nothing 
in  return.  He  is  a  truly  instinctive  criminal  in  that  his 
criminality  is  due  to  the  absence  or  imperfect  develop- 
,  ment  of  an  instinct  that  other  people  possess.  I  have 
called  them  moral  imbeciles  because  of  their  analogy  to 
intellectual  imbeciles,  who  also  are  born  deficient  in  a 
mental  quality  that  normal  persons  possess,  or  with  an 
incapacity  to  develop,  in  one  particular  respect,  up  to 
the  normal  standard  of  the  race  to  which  they  belong; 
and  I  prefer  the  title  of  moral  imbecile  because  that  of 


KINDS  OF  CRIMINALS  235 

instinctive  criminal  has  already  been  appropriated  by 
Lombroso  and  his  school,  and  applied  to  criminals  of  a 
very  different  kind — virtually  to  all  criminals. 

Moral  imbeciles  are  rare,  but  they  unquestionably 
exist,  and  are  of  two  kinds:  the  general  and  the  parti- 
cular, or  those  who  are  generally  criminal  or  immoral 
in  most  of  their  relations  with  their  fellows,  and  those 
whose  criminal  or  immoral  acts  are  of  a  very  restricted 
and  peculiar  kind. 

The  general  moral  imbecile  is  a  curse  to  the  family — 
usually  a  very  respectable  family,  and  it  may  be  a  family 
of  high  social  position — in  which  he  is  born.  He  begins 
to^&teal  almost  as  soon  as  he  can  walk,  evinces  in  early 
childhood  the  dishonesty,  the  callousness,  the  utter  in- 
difference to  the  welfare  and  feelings  of  those  around 
him,  that  characterize  him  throughout  his  life.  He  re- 
gards as  his  lawful  property  everything  that  he  takes  a 
fancy  to  and  on  which  he  can  lay  his  hands;  and  he  re- 
sents with  indignation,  and  apparently  with  a  sense  of 
outraged  innocence,  any  effort  of  the  lawful  possessor 
to  recover  it,  still  more  any  punishment  he  may  incur 
by  his  appropriation.  In  childhood,  his  amusements  con- 
sist in  torturing  the  cat  or  the  dog,  or  perhaps  his  broth- 
ers and  sisters,  whose  permanent  injury  or  death  may 
result  from  his  deliberate  cruelty;  and  as  he  grows  up, 
his  least  offensive  amusements  take  the  form  of  objec- 
tionable practical  jokes,  injurious  or  humiliating  to  their 
victims.  Punishment  arouses  in  him  only  a  sense  of  in- 
justice, of  injured  innocence,  and  of  rankling  vindictive- 
ness.  He  can  never  be  made  to  understand  that  retaliation 
upon  himself  is  justifiable  in  any  circumstances  for 
whatever  fault  he  may  commit,  though  he  is  rendy  to 
retaliate  upon  the  instant  on  any  injury  inflicted  on  him- 
self. In  short,  he  is  selfishness  incarnate.  He  is  a 


236  CRIME  AND  CRIMINALS 

solitary  beast  of  prey,  destitute  of  social  instincts ;  and  in 
a  society  he  is  a  hyaena  in  a  pack  of  hounds,  a  wasp  in  a 
beehive.  He  acknowledges  no  obligations  towards  those 
around  him,  and  looks  upon  them  only  as  victims  upon 
whom  he  may  prey. 

As  a  rule,  there  is  a  certain  intellectual  defect  also 
along  with  the  moral  defect.  The  general  moral  imbecile 
is  often,  perhaps  usually,  clever.  If  he  can  get  through 
his  school  and  college  career  without  expulsion,  an 
achievement  of  which  few  are  capable,  he  may  occupy  a 
creditable  position  in  his  classes,  and  take  a  creditable 
degree;  but  though  he  may  be  clever,  cleverness  is,  as 
I  have  explained  in  my  Text-book  of  Insanity,  not  the 
highest  intellectual  faculty.  It  occupies  only  the  second 
level,  and  is  quite  compatible  with  serious  defect  on  the 
higher  level,  which  I  have  entitled  wisdom,  and  which 
enables  a  man  to  regulate  the  more  important  modes  of 
conduct  in  the  more  important  affairs  of  life  so  as  to 
achieve  success  in  his  career.  The  general  moral  criminal 
evinces  his  lack  of  the  highest  intellectual  quality  by  his 
uniform  failure  in  life.  He  always  falls  in  the  social 
scale.  He  always  lives  from  hand  to  mouth.  He  always 
dies  poor;  and  he  not  infrequently  commits  suicide.  His 
depredations  may  be  planned  with  great  ingenuity,  but 
they  always  contain  some  crass  defect,  they  are  always 
vitiated  by  some  manifest  stupidity,  which  either  brings 
them  to  naught  or  entails  upon  their  perpetrator  speedy 
discovery  and  punishment.  He  may  be  clever,  but  he  is 
always  conspicuously  lacking  in  wisdom  and  discretion. 
His  callous  indifference  to  the  welfare  of  others  shows 
itself  chiefly  in  acts  of  dishonesty,  but  in  other  ways  also. 
He  is  cruel,  treacheous,  and  false  in  every  way.  One 
such  man  became  engaged  to  a  girl,  and  on  the  day  ap- 
pointed for  the  wedding  he  absconded,  without  explana- 


KINDS  OF  CRIMINALS  237 

tion,  warning,  or  notice,  leaving  the  girl  to  wait  in  the 
church  until  she  discovered  from  his  non-arrival  that  he 
was  not  coming. 

Moral  imbeciles  of  the  second  sub-class  have  not  the 
general  selfishness,  callousness,  and  indifference  to  the 
welfare  of  their  fellows  that  characterizes  the  general 
moral  imbecile,  neither  have  they  his  conspicuous  defect 
of  wisdom. 

They  are  persons  who,  in  addition  to  a  very  ordinary 
make-up,  not  departing  widely  from  the  mean  or  the 
average  of  normal  man,  possess  a  craving  of  great  in- 
tensity, but  of  very  restricted  scope,  for  one  very  limited 
class^of  objects;  a  craving  so  intense  and  overmastering 
thai:  it  impels  them  to  acts  for  its  satisfaction  in  defiance 
of  that  general  moral  restraint  which  is  sufficient  to  keep 
them  in  the  path  of  rectitude  in  respect  to  other  things. 
Such  cases  are  not  very  frequently  met  with,  but  they  are 
not  extremely  rare.  They  are  cases  of  persons  who  are 
habitual  criminals  in  the  sense  that  they  habitually  com- 
mit crimes,  but  whose  crimes  are  all  of  precisely  the  same 
character,  and  serve  no  further  end  beyond  affording  the 
gratification  of  committing  them.  This  is  the  mark,  this 
is  the  distinguishing  character,  of  crimes  of  this  kind. 
As  we  shall  see,  all  criminals  restrict  their  crimes  within 
the  limits  of  one  larger  or  smaller  class,  for  the  perpetra- 
tion of  which  they  have  a  special  taste  and  special  apti- 
tudes; and  in  this  respect  the  criminals  we  are  now 
considering  share  the  common  lot.  Their  distinctive 
peculiarities  are,  first,  the  minute  class  to  which  their 
crimes  are  restricted,  and  second,  that  the  crime  appears 
to  be  the  satisfaction  of  a  peculiar  and  special  appetite, 
so  that  when  the  crime  is  committed  and  the  appetite  for 
it  appeased,  there  is  an  end,  as  far  as  the  criminal's 
desires  are  concerned.  He  does  not  put  his  crime  or  the 


238  CRIME  AND  CRIMINALS 

proceeds  of  his  crime  to  any  further  use.  The  following 
cases  are  illustrative: — 

A  woman  of  good  position  and  ample  means  used  to 
steal  fans.  She  never  stole  anything  but  a  fan,  but  the 
sight  of  a  fan  aroused  in  her  an  irresistible  cupidity.  She 
never  bought  a  fan,  but  never  missed  an  opportunity  of 
stealing  one.  When  she  had  stolen  it,  she  took  it  home, 
locked  it  up  in  a  drawer,  and,  as  far  as  is  known,  never 
looked  at  it  again.  She  certainly  never  used  it.  When 
the  discovery  was  at  length  made,  she  had  a  considerable 
collection  of  fans  belonging  to  other  people — fans  that 
she  had  stolen  at  theatres,  concerts,  dinner-parties,  and 
so  forth,  from- both  friends  and  strangers. 

Mr.  Justice  Walton  used  to  relate  the  case  of  a  woman 
who  was  tried  repeatedly  before  him  for  stealing.  The 
peculiarity  of  her  case  was  that  she  never  stole  anything 
but  bacon.  Again  and  again  she  was  convicted  of  steal- 
ing a  small  piece  of  bacon,  but  she  was  never  charged 
with  stealing  anything  else,  and  as  far  as  was  known  to 
the  police,  she  never  did  steal  anything  else. 

A  man  of  great  wealth  and  high  position  used  to  steal 
spoons.  Whenever  he  went  out  to  dinner  he  would 
pocket  a  spoon  or  two  from  the  table.  His  valet  would 
find  the  spoon  in  the  pocket  of  his  master's  dress  clothes, 
and  duly  return  it  to  the  house  at  which  his  master  had 
been  dining.  The  master  never  inquired  what  had  be- 
come of  the  spoons  never  made  any  effort  to  keep  them 
or  to  put  them  to  any  use.  The  sight  of  the  spoon 
attracted  him  to  steal  it,  and  when  he  had  gratified  his 
desire,  the  spoon  had  no  further  interest  for  him.  He 
made  no  attempt  to  conceal  it,  nor  did  he  ever  ask  what 
had  become  of  it. 

At  the  Rutland  assizes  a  few  years  ago  a  young  man 
was  tried  for  stealing  fowls.  He  went  a  considerable 


KINDS  OF  CRIMINALS  239 

distance  out  of  his  way  to  steal  them ;  he  had  nowhere  to 
keep  them;  he  did  not  attempt  to  dispose  of  them.  Hav- 
ing got  them,  he  did  not  know  what  to  do  with  them. 
The  defense  was  that  he  had  an  irresistible  propensity  to 
steal  fowls.  He  had  stolen  fowls  before,  and  he  had 
never  stolen  anything  else.  In  other  respects  his  con- 
duct was  irreproachable.  The  evidence  to  this  effect 
was  so  cogent  that  the  jury  accepted  it,  and  he  was 
acquitted. 

These  are  true  kleptomaniacs,  and  it  is  to  such  people 
that  the  term  ought  to  be  restricted;  but  it  is  often  very 
incorrectly  applied  to  the  well-to-do  shoplifter.  The 
proclivity  of  such  instinctive  criminals  is  not  always  to 
stealing.  It  may  be  to  arson,  and  is  then  called  pyro- 
mania;  and  there  is  at  least  one  case  on  record  in  which 
it  was  to  murder — motiveless,  unprofitable,  unvindictive, 
unmalicious  murder. 

Many  other  cases  could  be  cited,  but  the  foregoing 
are  enough  to  illustrate  the  kind  of  criminals  enumerated 
here  as  composing  the  second  sub-class  of  the  first  class 
of  habitual  criminals. 

The  second  class  of  habitual  criminal  is  composed  of 
those  who  commit  crime  after  crime,  not,  as  with  those 
already  considered,  because  they  have  a  strong,  active 
impulsion  to  crime,  but  because  their  social  instincts, 
weak  though  not  absent  to  begin  with,  have  never  been 
cultivated  or  intensified  by  a  course  of  judicious  training, 
such  as  operates  on  all  children  who  are  wholesomely 
brought  up.  These  unfortunates  have  had  either  no 
homes  or  bad  homes.  They  have  struggled  up  from  the 
gutter.  They  are  perhaps  the  children  of  criminals  or 
of  drunkards,  and  have  been  neglected  in  the  care  both 
of  their  bodies  and  their  morals.  They  are  children  of 
the  slums,  brought  up  in  an  atmosphere  of  immorality 


240  CRIME  AND  CRIMINALS 

and  crime,  and  naturally  follow,  as  children  are  prone 
to  do,  the  examples  most  commonly  and  prominently  set 
before  them.  Or  they  are  by  nature  idle  and  self- 
indulgent,  strongly  averse  to  steady  and  continuous  em- 
ployment, though  capable  of  occasional  bursts  of  great 
energy.  Self-indulgent,  they  are  incapable  of  work  in 
the  proper  sense  of  work — that  is  to  say,  of  continuing 
at  a  relatively  distasteful  employment  in  spite  of  the 
allurement  of  one  more  attractive,  or  of  idleness.  They 
are  impatient,  and  want  quick  results.  The  slow  gains  of 
steady  labor  are  too  slow  for  them.  They  aspire  to  make 
in  a  short  time  by  strenuous  exertion  as  much  as  will 
sustain  them  in  idleness  for  a  much  longer  time ;  and  the 
readiest  way  to  rapid  gain  is  the  way  of  crime.  Their 
constitutional  idleness  and  aversion  to  steady  labor  pre- 
vent them  from  gaining  a  high  degree  of  skill  in  any 
honest  occupation,  and  therefore,  once  embarked  upon  a 
career  of  crime,  they  continue  in  it;  and  another  reason 
for  the  continuance  is  that  they  can  give  no  references, 
and  have  no  character.  Hence  they  soon  become  ex- 
cluded from  the  ranks  of  honest  labor,  and  find  honest 
means  of  gaining  a  livelihood  closed  to  them.  For  them, 
crime  is  the  path  of  least  resistance,  and  they  follow  it, 
at  first  from  indolence  and  self-indulgence,  and  at  length 
from  necessity. 

It  will  be  seen  from  what  has  been  said  that  many 
criminals  of  this  class  are  reformable  if  only  they  can  be 
caught  early  enough,  before  their  habits  are  fixed  and 
their  characters  destroyed.  Those  who  owe  their  crimi- 
nality in  great  part  to  evil  surroundings,  evil  example, 
and  want  of  knowledge  and  opportunity  for  better  things 
in  early  life,  may,  if  they  are  rescued  in  early  life  from 
their  circumstances  and  properly  trained  and  influenced, 
be  reformed  and  made  useful  and  upright  members  of 


KINDS  OF  CRIMINALS  241 

society;  but  when  once  the  habit  of  criminality  is  become 
confirmed,  there  is  little  hope  of  reformation. 

Of  habitual  criminals  of  this  class  there  are  two  sub- 
classes parallel  with  the  sub-classes  of  the  class  already 
considered.  They  may  be  divided  into  the  general  prac- 
titioners of  crime  and  the  specialists;  and  the  number 
of  the  latter  preponderates  vastly  over  that  of  the 
former. 

General  practitioners  in  crime  are  but  few,  and  are  for 
the  most  part  limited  to  the  young,  who  have  not  yet 
found  their  appropriate  and  congenial  specialty.  They 
are  persons  who  are  ready  to  commit  any  kind  of  crime, 
from  petty  larceny  to  murder,  that  promises  them  gain. 
They  are  so  few  that  we  need  not  consider  them  at 
length. 

The  great  majority  of  habitual  criminals  are  special- 
ists. Each  of  them  takes  to  only  that  kind  of  crime  for 
which  his  tastes,  his  aptitudes,  his  abilities,  and  his  habits 
render  him  most  adapted;  and  having  once  adopted  a 
special  kind  of  crime,  he  adheres  to  it  for  life. 

Different  kinds  of  crime  are  perpetrated  by  different 
kinds  of  criminals,  always  premising  that  by  a  different 
kind  of  criminal  is  meant,  not  a  natural  kind,  such  as 
the  older  logicians  postulated,  separated  on  all  sides  by 
an  impassable  gulf  from  other  natural  kinds,  nor  a  dif- 
ferent species  or  variety  of  the  human  race,  but  merely 
that  the  criminals  addicted  to  any  particular  kind  of 
crime  will  resemble  one  another  and  differ  from  criminals 
addicted  to  other  kinds  of  crime,  in  having  a  certain 
mental  make-up,  or  combination  of  mental  qualities.  We 
should  expect  a  priori  that  criminals  who  commit  crimes 
of  violence  would  resemble  one  another  and  differ  from 
other  criminals  in  possessing  a  hasty  and  ungoverned 
temper,  a  vindictive  spirit,  a  tendency  to  impulsive  action, 


242  CRIME  AND  CRIMINALS 

and  probably  a  powerful  physique.  We  should  expect 
the  criminal  who  commits  the  more  elaborate  and,  as  we 
may  call  them,  the  more  intellectual  kinds  of  crime,  such 
as  forgery  and  ingenious  modes  of  swindling,  to  be  more 
intelligent  than  criminals  who  commit  what  we  may  term 
crude  kinds  of  crime,  such  as  crimes  of  violence  and  of 
damage  to  property,  and  so  forth.  And  we  should  expect 
that  criminals  who  commit  very  crude  and  stupid  kinds 
of  crime,  such  as  damage  to  property  usually  is,  to  be 
more  stupid  than  the  rest  of  criminals.  In  all  these  re- 
spects our  a  •priori  anticipations  are  found  by  Dr.  Gor- 
ing's  researches  to  be,  in  the  case  of  convicts,  fulfilled. 

These  general  correspondences  between  the  mental 
and  to  some  extent  the  physical  make-up  or  constitution 
of  the  criminal  and  the  kind  of  crime  he  commits  are 
such  as  we  should  almost  necessarily  anticipate,  and  such 
as,  from  the  very  nature  of  things,  we  should  be  justified 
in  predicting;  but  experience  of  criminals  and  their  crimes 
brings  to  light  other  correspondences  that  we  should 
hardly  have  anticipated — correspondences  not  merely  be- 
tween minor  classes  of  criminals  and  more  restricted 
kinds  of  crime,  but  even  individual  correspondences  by 
which  an  individual  criminal  will  perpetrate  repeatedly 
the  same  restricted  kind  of  crime  in  the  same  peculiar 
way. 

Dr.  Goring  divides  crime  into  six  primary  classes,  and 
criminals  into  six  corresponding  classes.  His  classes  are 
as  follows: — 

Malicious  damage  to  property. 

Stealing  and  burglary. 

Sexual  offenses. 

Violence  to  the  person. 

Coining. 

Forgery  and  fraud. 


KINDS  OF  CRIMINALS  243 

He  finds  that  each  class  of  crimes  has  a  correspond- 
ing class  of  convicts,  who  differ  from  the  convicts  that 
have  committed  crimes  of  other  classes.  My  classifica- 
tion is  much  more  detailed,  but  it  is  still  true  of  my  classi- 
fication that  the  criminals  who  commit  crimes  of  one 
class  restrict  themselves  to  crimes  of  that  class.  They 
are  specialists  and  are  not  what  might  be  termed  general 
practitioners  of  crime.  Dr.  Goring's  second  class,  for 
instance,  includes  stealing  and  burglary;  but  scarcely  any 
thief  is  a  burglar,  and  scarcely  any  burglar  is  a  thief. 
The  two  classes  are  distinct,  and  unquestionably  are 
made  and  kept  distinct  by  the  possession  of  certain  mental 
ancTbodily  aptitudes,  proclivities,  and  other  physical  and 
mental  peculiarities.  The  burglar  needs  courage  and 
enterprise  that  are  not  required  by  the  pickpocket.  The 
pickpocket  requires  manual  dexterity  of  a  kind  that  would 
be  of  little  use  to  the  burglar ;  and  hence  we  find  that  the 
burglar  is  never  a  pickpocket,  the  pickpocket  never  a  bur- 
glar. The  two  classes  of  criminals  are  quite  distinct, 
and  are  distinguished  as  much  by  personal  differences  as 
by  th.e  different  callings  which  result  from  these  personal 
differences. 

Not  only  do  burglars  differ  from  thieves,  but  also 
within  the  class  of  burglars  are  minor  classes,  and  within 
the  class  of  thieves  minor  classes;  and  burglars  of  each 
class  restrict  themselves  to  their  particular  kind  of  bur- 
glary. There  are  burglars  who  always  work  in  gangs, 
burglars  who  always  work  in  pairs,  and  burglars  who, 
like  Charles  Peace,  always  work  in  solitude.  There  are 
burglars  who  fly  at  high  game,  who  restrict  their  opera- 
tions to  jewel  and  other  safes,  and  who  would  scorn 
to  steal  spoons;  and  others  who  would  never  think  of 
attacking  a  safe,  but  enter  a  house  to  pick  up  what  they 
can  find.  There  are  burglars  who  break  into  houses 


244  CRIME  AND  CRIMINALS 

only  at  dinner-time,  and  when  the  inmates  are  assembled 
on  the  ground  floor;  and  burglars  who  operate  only  at 
dead  of  night,  and  so  on.  There  are  burglars  who  are 
specialists  in  sacrilege,  confine  their  operations  to  the 
collecting  boxes  of  churches  and  the  church  plate,  and 
never  break  into  a  private  house.  Every  thief  also  be- 
longs to  his  own  special  class  of  thieves,  and  confines 
himself  to  one  kind  of  theft.  The  area  sneak  who 
filches  the  milk-cans  from  the  doors  of  late  risers  has  not 
dexterity  enough  to  pick  a  pocket,  even  if  he  had  the 
inclination  to  do  so;  and  the  pickpocket  would  scorn  to 
stoop  to  the  method  of  the  area  sneak.  Shoplifters  form 
a  class  by  themselves.  They  are  always  of  the  female 
sex,  and  usually  well-to-do.  Another  class  of  female 
thieves  is  composed  of  bogus  cooks,  who  call  upon  ladies 
who  have  advertised  for  a  servant,  are  taken  faint  during 
the  interview,  and,  while  the  mistress  is  gone  for  a  glass 
of  water,  lay  their  hands  upon  any  valuable  they  see  and 
make  off  with  it.  These  women  are  never  shoplifters, 
nor  is  the  shoplifter  ever  a  bogus  cook.  Bicycle  thieves 
steal  as  many  bicycles  as  they  can  lay  their  hands  on, 
but  as  a  rule  they  steal  nothing  else.  They  form  a  sepa- 
rate class  of  thieves,  as  distinct  as  possible  from  the 
class  of  thieves  who  waylay  seafaring  men,  ply  them  with 
drink,  and  empty  their  pockets  when  they  are  drunk. 

Each  of  Dr.  Goring' s  six  main  classes  of  criminals  is 
susceptible  of  division  into  sub-classes  in  the  same  way. 
The  long-firm  swindler  is  quite  distinct  from  the  welsher, 
and  may  be  strictly  honorable  in  his  dealings  on  the  race- 
course. The  man  who  would  forge  a  will  would  never 
forge  a  banknote.  The  thimble-rigger  and  professor  of 
the  three-card  trick  may  be  quite  above  bilking  a  landlady 
or  a  cabman.  Ringing  the  changes  is  an  art  by  itself, 
requiring  a  peculiar  effrontery  and  dexterity,  and  is  re- 


KINDS  OF  CRIMINALS  245 

stricted  to  a  special  class  of  operators.  The  bogus  ad- 
vertisers, who  advertise  goods  for  sale,  take  the  money, 
and  do  not  send  the  goods,  form  another  sub-class  whose 
members  do  not  practise  any  other  mode  of  swindling. 
The  tradesman  who  adulterates  his  goods  would  not 
falsify  a  balance-sheet,  nor  would  the  falsifier  of  a  bal- 
ance-sheet set  fire  to  his  house  to  claim  the  insurance 
money.  Criminals  of  each  sub-class,  no  less  than  crim- 
inals of  each  principal  class,  restrict  their  operations  to 
a  particular  kind  of  crime,  and  do  so  because  their  mental 
and  physical  constitution  adapts  them  to  crime  of  that 
sub-class  and  not  to  any  other. 

When  we  examine  each  of  the  main  classes  of  crime, 
committed  by  its  own  class  of  criminals,  and  divided  into 
its  several  sub-classes,  each  committed  by  its  correspond- 
ing sub-class  of  criminals,  and  the  sub-classes  into  sub- 
sub-classes,  as  it  is  manifest  to  those  who  are  acquainted 
with  crime  and  criminals  that  we  could  do,  the  process  of 
division  would  still  be  incomplete.  It  would  be  incom- 
plete until  we  had  pushed  it  to  the  uttermost  and  dis- 
covered whether  there  is  not  an  individuality  in  crime  as 
there  unquestionably  is  in  criminals;  whether  each  crim- 
inal, in  committing  the  crime  to  which  he  is  addicted, 
does  not  pursue  it  by  his  own  peculiar  methods  which 
stamp  his  individuality  upon  the  crime.  A  priori  con- 
siderations would  lead  us  to  suppose  that  this  should 
be  so,  for  in  every  form  and  mode  of  human  endeavor 
we  find  that  no  two  human  beings  do  what  we  call  the 
same  thing  in  precisely  the  same  way.  As  every  man 
has  a  certain  individual  physique,  facial  features,  and 
fingermarks,  that  distinguish  him  clearly  and  infallibly 
from  the  rest  of  the  human  race,  so  every  man  has  certain 
characteristic  individual  ways  of  doing  things  that  all 
men  do,  so  that  by  the  way  he  does  these  things  we  may 


246  CRIME  AND  CRIMINALS 

recognize  the  individual  handiwork  and  identify  the  doer. 
An  instance  familiar  to  every  one  is  handwriting.  A 
man's  handwriting  is  as  individually  characteristic  as  the 
features  of  his  face  or  the  ridges  on  the  palm  of  his 
thumb.  It  possesses  so  much  in  common  with  the  hand- 
writing of  other  people  that  we  know  it  at  once  for  hand- 
writing; and,  unless  it  is  executed  by  a  public-school-and- 
university  man,  we  can  even  read  it.  The  letters  and 
words  are  formed  approximately  after  the  same  fashion. 
They  are  formed,  at  any  rate,  in  imitation  of  a  common 
standard,  and  they  have  a  general  conformity  to  this 
standard,  and  therefore  a  general  similarity  to  the  writ- 
ing of  other  people;  but  within  this  general  similarity 
there  is  infinite  diversity.  Just  as,  of  all  the  millions  of 
men,  and  even  of  Englishmen  or  Frenchmen,  each  is  so 
characteristically  different  from  the  rest  in  facial  features 
that  he  can  easily  be  distinguished  from  all  of  them  and 
identified,  so  it  is  with  their  handwritings.  Even  when 
they  write  the  same  words  in  the  same  sequence,  even 
when  they  copy  the  same  document,  each  copy  can  be 
allotted  without  the  least  difficulty,  by  any  one  familiar 
with  the  respective  handwritings,  to  the  person  who 
wrote  it.  If  a  class  of  fifty  pupils  be  set  to  copy  the  same 
drawing,  all  will  produce  drawings  that  closely  resemble 
the  copy,  but  in  each  drawing  the  handling  will  be  so 
characteristic  of  the  copier,  that  the  master  who  is  fami- 
liar with  them  all  can  pick  out  each  and  assign  it  to  its 
executant.  The  same  principle  is  true  of  all  handicrafts, 
and  it  is  by  virtue  of  this  principle  that  experts  are  able 
to  identify  the  painters,  who  have  died  generations  ago, 
of  pictures  that  still  survive  them.  Of  twenty  different 
portraits  of  the  same  person,  each  will  be  identifiable  as 
a  portrait  of  that  person  and  no  other,  but  each  will  be 


KINDS  OF  CRIMINALS  247 

identifiable  also  as  the  handiwork  of  the  particular  artist 
who  painted  it. 

Nor  is  the  principle  true  of  handicrafts  alone.  It  is 
true  of  mental  products  also.  It  is  true,  for  instance, 
of  literary  style.  No  one  could  mistake  the  literary  style 
of  Pepys  for  that  of  Sir  Thomas  Browne,  or  of  either  for 
that  of  Evelyn.  Even  though  they  wrote  on  the  same 
subject,  no  one  could  mistake  the  style  of  Swift  for  that 
of  Pope,  or  either  for  that  of  Addison.  No  one  could 
mistake  the  style  of  Burke  for  that  of  Johnson,  or  either 
for  that  of  Goldsmith;  or  the  style  of  Tennyson  for  that 
of  Browning,  or  either  for  that  of  Swinburne;  or  the 
style  of  Macaulay  for  that  of  Cardinal  Newman,  or 
either  for  that  of  Walter  Bagehot;  or,  it  may  be  added, 
the  style  of  Shakespeare  for  that  of  Bacon,  or  either  for 
that  of  Spenser.  And  if  the  style  of  each  of  these  writers 
is  unmistakably  different  from  the  style  of  all  his  con- 
temporaries, it  is  still  more  different  from  the  styles  of 
his  predecessors  and  successors.  Sir  Thomas  Browne 
is  widely  different  from  Pepys,  but  is  nearer  to  Pepys 
than  to  Chaucer  or  to  Macaulay.  Dryden  is  widely 
different  from  Pope,  but  not  as  different  from  Pope  as 
he  is  from  Donne  on  the  one  hand  or  Tennyson  on  the 
other.  Scott  is  widely  different  from  Austen,  but  not 
as  different  as  from  Fielding  on  the  one  hand  or  Mr. 
Anthony  Hope  on  the  other.  What  concerns  us  here 
is  not  only  that  the  style  of  each  writer  differs  from  that 
of  every  other,  but  also  that  the  literary  style,  like  the 
handwriting,  of  any  one  person  is  self-consistent.  As 
every  letter  and  every  page  of  his  handwriting  is  unmis- 
takably identifiable  as  the  work  of  a  single  penman,  so 
is  every  letter  and  every  page  of  print  stamped  with  his 
individuality,  and  expressed  in  a  way  different  from  that 


248  CRIME  AND  CRIMINALS 

in  which  any  one  else  would  express  the  same  thought. 
The  principle  of  individuality  dominates  the  activities 
of  every  human  being,  and  determines  what  he  shall  do 
and  how  he  shall  do  it.  This  is  only  another  way  of 
saying  that  every  man  is  constituted  to  some  extent  dif- 
ferently in  every  respect  from  every  other  man.  It  is 
an  instance  of  the  principle  of  variation.  As  men  vary 
in  stature,  and  in  head-length  and  head-breadth,  and  in 
the  other  characters — most  of  them,  it  must  be  said, 
irrelevant  to  criminality — measured  with  such  care  and 
manipulated  statistically  with  such  dexterity  by  Dr. 
Goring,  so  they  differ  in  those  fine  nervous  arrangements 
that  determine  their  handwriting,  so  they  differ  in  those 
still  finer  nervous  arrangements  that  underlie  their  liter- 
ary style,  so  they  differ  in  every  faculty  and  aptitude 
both  bodily  and  mental,  and  so  they  differ  in  the  strength, 
both  relative  and  absolute,  of  their  several  desires,  of 
their  wills,  their  intellects,  their  emotions,  and  their 
memories.  The  constitutional  make-up  or  temperament, 
which  consists  of  the  sum-total  of  all  a  man's  characters, 
abilities,  aptitudes,  and  disabilities,  determines,  both  in 
its  broadest  features  and  in  its  minutest  details,  how  he 
shall  act  in  the  presence  of  any  group  of  circumstances. 
It  determines  what  calling  in  life  he  shall  follow,  how  he 
shall  follow  it,  and  his  modes  of  action  down  to  the  most 
trivial  action. 

The  second  primary  class  of  criminals  consists  of 
occasional  criminals.  These  are  persons  who,  unlike 
habitual  criminals,  especially  those  of  the  first  class, 
whom  we  may  call  constitutional  criminals,  differ  but 
little  in  mental  constitution  from  the  mean  of  the  society 
to  which  they  belong.  Their  criminality  depends  mainly, 
not,  as  that  of  the  habitual  criminal  does,  upon  the  inter- 
nal factor,  but  upon  the  external  factor.  They  are  not 


KINDS  OF  CRIMINALS  249 

constitutionally  predisposed  to  crime  as  the  instinctive 
criminal  is,  nor  do  they  drift  into  a  life  of  crime,  as 
criminals  of  the  second  class  do,  by  reason  of  constitu- 
tional indolence,  self-indulgence,  and  cupidity  which  have 
never  been  counteracted  by  wholesome  environmental 
influences.  Criminals  of  the  class  now  under  considera- 
tion are  ordinary  citizens  of  ordinary  upbringing  and 
rectitude  who  are  allured  into  some  crime  by  temptation 
of  exceptional  severity,  or  allow  themselves  to  slip  into  a 
minor  offense  for  the  same  reason.  Even  the  most  up- 
right and  severely  moral  person  may  slip  into  the  minor 
offense  of  riding  in  the  dark  without  a  light  on  his  bi- 
cycfe  or  his  motor  car,  if  it  has  gone  out  within  half  a 
mile  of  his  destination  and  he  is  in  a  hurry;  and  similarly, 
if  he  is  in  desperate  pecuniary  straits,  which  he  is  con- 
vinced are  purely  temporary,  and  will  certainly  be  re- 
lieved very  soon,  the  same  man  may  permit  himself  to 
borrow  from  a  trust  fund  money  that  he  may  subse- 
quently find  himself  unable  to  repay.  The  triviality  or 
gravity  of  the  offense  makes  no  real  difference  in  the 
machinery  by  which  it  is  brought  about.  In  both  cases  it 
is  due  to  the  exceptional  power  of  the  lure,  and  not  to 
any  criminal  disposition  of  the  perpetrator.  Let  him 
that  is  without  sin  cast  the  first  stone.  I  do  not  say  that 
no  defaulting  trustee  incurs  grave  guilt;  I  say  that  some 
defaulting  trustees,  like  some  bicyclers  who  fail  to  light 
their  lamps,  do  what  nineteen  persons  out  of  twenty 
would  do  in  the  same  circumstances. 

It  does  not  at  all  follow  that  he  who  commits  but  one 
crime  is  an  occasional  criminal.  The  habitual  or  occa- 
sional nature  of  the  criminality  does  not  depend  upon  the 
number  of  crimes  the  criminal  commits.  It  depends,  as 
has  been  shown,  upon  whether  the  criminal  is  or  is  not 
constitutionally  predisposed  to  crime;  upon  whether  his 


250  CRIME  AND  CRIMINALS 

crime  is  committed  in  circumstances  that  would  hold 
out  no  temptation  to  a  person  of  ordinary  rectitude,  or 
whether  it  is  committed  by  a  person  of  ordinary  rectitude 
under  the  stress  of  an  overwhelming  temptation.  Many 
murderers  are  caught,  convicted,  and  hanged  after  their 
first  murder,  and  therefore  have  no  chance  of  becom- 
ing habitual  murderers;  and  many  murderers  commit 
murder  after  murder  before  they  are  discovered,  or  even 
suspected;  but  it  by  no  means  follows  that  the  latter 
alone  are  habitual  murderers.  Some  who  are  caught 
after  what  is,  so  far  as  is  known,  their  first  murder,  are 
found  to  possess  a  mental  constitution  so  peculiar,  so 
selfish,  so  brutal,  so  callous,  so  utterly  wanting  in  sym- 
pathy and  morality,  so  willing  to  inflict  upon  others  any 
injury  that  may  conduce  to  their  own  comfort,  that  it  is 
clearly  only  the  quasi-accident  of  their  being  caught  and 
hanged  after  their  first  murder  that  prevents  them  from 
repeating  the  crime  whenever  they  should  find  it  profit- 
able to  do  so,  and  thus  becoming  habitual  murderers  in 
esse,  as  they  already  are  in  posse.  Such  a  murderer  was 
Crippen,  and  such  are  all  poisoners.  It  is,  in  fact,  rare 
for  a  poisoner  to  be  convicted,  or  even  suspected,  of  his 
first  murder.  It  is  a  mode  of  crime  so  abhorrent  that 
few  are  bad  enough  to  commit  it,  and  that  few  are  apt  to 
suspect,  unless  it  is  perpetrated  in  a  very  clumsy  manner; 
and  hence  the  poisoner's  first  crime  often  goes  unsus- 
pected; and  it  is  very  usual,  when  a  poisoner  is  convicted, 
for  those  acquainted  with  him — or  her — to  remember 
that  several  unexpected  deaths  have  occurred  by  which 
the  poisoner  has  benefited,  and  among  persons  to  whom 
he — or  she — has  had  access. 

Be  this  as  it  may,  the  occasional  criminal  is  not  neces- 
sarily the  person  who  commits  but  one  crime.  He  is 
the  person  in  the  origin  of  whose  crime  the  external 


KINDS  OF  CRIMINALS  251 

factor,  the  temptation,  preponderates  greatly  over  the 
internal  factor,  the  mental  constitution  that  predisposes 
to  crime.  The  distinction  is  manifestly  not  an  absolute 
distinction,  for  in  every  crime  both  the  internal  factor 
and  the  external  factor  participate  in  the  causation;  but 
though  not  an  absolute  distinction,  it  is  a  distinction  of 
great  practical  importance.  Any  attempt  to  reform  the 
instinctive  criminal  is  a  hopeless  task,  foredoomed  to 
failure.  It  is  an  attempt  to  wash  the  Ethiopian  white, 
or  to  make  the  leopard  change  his  spots.  It  is  an  attempt 
to  convert  the  wolf  into  a  lap-dog.  On  the  other 
hand,  any  attempt  to  reform  an  occasional  criminal  is 
superfluous.  He  is  in  no  need  of  reform.  His  crime  is 
due  to  stress  of  circumstances,  and  if  the  circumstances 
are  never  likely  to  be  repeated,  the  crime  is  never  likely 
to  be  repeated.  If  it  should  happen  that  the  circum- 
stances are  repeated,  no  reforming  influence  other  than 
the  ordinary  punishment  inflicted  for  crime  of  that  char- 
acter will  prevent  the  repetition  of  the  crime.  No  one 
would  think  of  attempting  to  reform  by  religious  or 
moral  training  the  bicyclist  who  had  neglected  to  relight 
his  lamp.  A  fine  that  leaves  him  uncomfortable  will  be 
enough;  and,  similarly,  it  is  fruitless  to  attempt  to  re- 
form the  defaulting  trustee.  He  is  never  likely  to  have 
another  trust  to  administer;  and  if  he  were  to  be  so 
trusted,  the  punishment  incurred  by  his  first  offense  would 
be  sufficient,  if  he  is  but  an  occasional  criminal,  to  deter 
him  from  a  second.  Properly  understood,  reform  means 
alteration  of  the  mental  constitution  in  such  a  way  as  to 
abolish,  or  at  least  to  diminish,  the  exceptional  proclivity 
to  crime.  But  the  occasional  criminal  has  no  exceptional 
proclivity  to  crime,  and  therefore  stands  in  no  need  of 
reform.  The  only  criminals  for  whom  reform  is  needed 
and  in  whom  reform  is  practicable  are  the  habitual  crim- 


252  CRIME  AND  CRIMINALS 

inals  of  the  second  class,  who  are  criminals  not  by  in- 
tensity of  the  internal  factor  nor  by  intensity  of  the 
external  factor,  neither  because  they  are  born  with  a 
powerful  and  unconquerable  proclivity  that  needs  no 
temptation,  nor  because,  being  men  of  ordinary  rectitude, 
they  are  subjected  to  overwhelming  and  irresistible 
temptation,  but  who  drift  into  criminal  ways  by  reason  of 
favoring  circumstances  acting  on  a  favorable  nature — • 
who  are  naturally  self-indulgent,  cupidinous,  averse  to 
steady  employment,  and  have  never  been  subjected  to 
such  training  and  discipline  as  is  calculated  to  combat  and 
counteract  these  criminalizing  qualities.  These,  if  caught 
young,  before  their  habits  of  criminality  are  confirmed, 
may  be  reformed.  The  reformation  of  other  kinds  of 
criminals  is  either  hopeless  or  unnecessary. 


CHAPTER  IX 

THE   PREVENTION,   DETECTION  AND  PUN- 
ISHMENT OF  CRIME 

I.    PREVENTION 

THE  prevention  of  crime,  like  the  prevention  of  anything 
else,  can  be  effected  only  by  attacking  its  causes;  and 
hence  the  discussion  in  a  previous  chapter  on  the  causes 
of  crime  has  an  immediate  practical  bearing.  If  crim- 
inals are  a  separate  race  of  men,  as  Japanese  or  Jews 
are,  then  the  only  way  to  prevent  crime  is  to  exterminate 
the  criminal  race.  If  they  are  not  born  criminals,  but 
are  made  criminals  by  unsanitary  surroundings,  then  we 
can  prevent  crime  by  pulling  down  slums  and  establish- 
ing an  effectual  system  of  drainage.  If  crime  is  due  to 
defective  education,  then  let  us  reform  our  schools. 
Whatever  the  cause,  crime  can  only  be  prevented  by 
attacking  the  cause. 

My  opinion,  as  I  have  stated  in  a  previous  chapter, 
is  that  crime  is  a  function  of  two  variables,  viz.  a  certain 
temptable  disposition  on  the  part  of  the  person  who 
commits  crime,  and  the  temptation  to  which  he  is  sub- 
jected; and  that  the  more  of  one  of  these  factors  that  is 
present,  the  less  of  the  other  is  needed  to  bring  about 
the  result.  In  short,  crime  is  due  to  temptation  offered 
to  temperament.  This  being  so,  crime  is  to  be  dimin- 
ished, if  at  all,  by  diminishing  temptation,  including  op- 
portunity, and  by  modifying  temperament.  If  my 
doctrine  of  the  causation  of  crime  is  correct,  there  is  no 
253 


254  CRIME  AND  CRIMINALS 

other  way.  Legislation  can  do  little  to  diminish  tempta- 
tion to  crime,  but  it  can  do  much  to  diminish  opportunity. 
Something  can  be  done  even  to  diminish  temptation. 
Those  who  carelessly  leave  temptation  in  the  way  of 
others — as,  for  instance,  shopmen  who  leave  their  wares 
unwatched,  and  householders  who  leave  valuables  lying 
about  in  their  houses,  or  at  hotels,  or  in  cabs — might  be 
punished  for  doing  so.  They  become,  in  fact,  acces- 
sories to  crime;  and  the  least  that  should  be  done  is  to 
deprive  them  of  part  of  the  value  of  their  property  if 
the  property  is  recovered.  If  shopkeepers  were  more 
vigilant,  shoplifting  could  be  sensibly  diminished.  "  How 
oft  the  sight  of  means  to  do  ill  deeds  makes  ill  deeds 
done !  "  Provision  for  more  frequent  auditing  and  stock- 
taking and  supervision  over  employees  generally  would 
do  something  to  diminish  temptation  and  opportunity. 
Much  is  already  done  by  harrying  and  prosecuting  re- 
ceivers, for  it  is  an  old  saying  that  if  there  were  no 
receivers  there  would  be  no  thieves.  The  provisions  of 
the  Pawnbrokers  Acts  serve  the  same  purpose,  and  serve 
it  very  efficiently.  Much  more  could  be  done  than  is  done 
by  the  police  in  warning  inexperienced  and  unsuspecting 
persons  of  notorious  and  common  swindles  that  are  re- 
peated again  and  again,  and  have  been  repeated  from 
time  immemorial,  such  as  the  confidence  trick,  thimble- 
rigging,  the  three-card  trick,  the  Spanish-prisoner  swindle, 
the  gold-brick  swindle,  and  many  another.  Steamboat 
companies  very  properly  place  notices  in  their  boats 
warning  passengers  against  pickpockets,  and  the  police 
might  well  keep  standing  advertisements  in  the  news- 
papers and  at  railway  termini,  warning  the  unsuspecting 
against  common  swindles,  and  altering  the  warnings  from 
time  to  time  as  the  fashion  in  swindling  changes.  Many 
swindles  are  effected  through  advertisements  in  the  news- 


THE  PREVENTION  OF  CRIME  255 

papers,  and  some  newspapers,  to  their  great  credit, 
exercise  a  rigorous  censorship  over  their  advertisements. 
The  Times,  for  instance,  sets  a  most  honorable  example 
by  refusing  to  insert  the  advertisements  of  money- 
lenders; but  many  newspapers  derive  a  large  part  of 
their  incomes  from  advertisements  that  are  upon  the  face 
of  them  dishonest.  When  it  is  proved  that  a  swindle 
has  been  effected  by  means  of  an  advertisement  of  this 
kind,  the  proprietor  of  the  newspaper  is  particeps  crim- 
inis,  and  should  be  punished  as  an  accessory. 

When  we  speak  of  the  prevention  of  crime,  we  do  not 
mean  the  prevention  of  crime  in  general;  we  mean  the 
prevention  of  crimes  committed  for  the  motive  of  gain. 
It  is  manifest  that  it  would  be  unprofitable  to  provide 
machinery  for  the  prevention  of  vindictive  crimes  or  of 
crimes  due  to  jealousy,  even  if  any  such  machinery  were 
devisable;  for  such  crimes  form  but  a  very  small  pro- 
portion of  all  the  crimes  that  are  committed.  When  we 
speak  of  the  prevention  of  crime,  we  mean  the  prevention 
of  crimes  of  dishonesty,  which  form,  as  has  been  said, 
some  94  or  95  per  cent,  of  all  crimes  in  this  country. 

A  very  efficacious  mode  of  preventing  crime  would  be 
to  render  it  unprofitable.  The  immensely  largest  pro- 
portion of  crimes  are  committed  for  gain,  for  the  profit 
they  bring  in;  and  if  they  brought  in  no  profit,  it  would 
not  be  worth  while  to  commit  them.  If  a  thief  knew  that 
as  soon  as  he  had  committed  a  thert  the  stolen  property 
would  be  taken  out  of  his  hand  and  restored  to  the 
owner,  it  would  be  unnecessary  to  punish  theft,  for  theft 
would  not  be  committed.  It  would  be  unprofitable. 
The  motive  would  be  abolished.  Although  this  ideal 
can  never  be  reached,  it  is  approached  the  more  nearly 
the  more  certain  detection  becomes.  Hence  the  great 
importance  of  detecting  crime,  by  which  is  meant  bring- 


256  CRIME  AND  CRIMINALS 

ing  crime  home  to  the  perpetrator.  The  more  certainly 
and  the  more  promptly  this  is  done,  the  more  unprofit- 
able crime  will  be  made,  the  less  will  be  the  temptation 
to  commit  crime,  and  the  fewer  crimes  will  be  committed. 

Again,  if  there  were  no  criminals  there  would  be  no 
crimes.  It  is  true  that  every  one  is  a  potential  criminal, 
but  it  is  true  also  that  every  one  is  not  an  actual  criminal; 
and  a  very  large  proportion  of  crimes  are  committed  by 
men  whose  profession  and  business  it  is  to  commit  crime, 
and  who  have  no  other  way  of  making  a  living.  If  these 
men  were  put  out  of  society,  either  by  putting  them  to 
death,  or  by  banishing  them,  or  by  keeping  them  per- 
manently in  prison,  the  number  of  crimes  committed 
would  be  very  sensibly  diminished.  This  has  been  recog- 
nized and  provided  for  by  the  Act  for  the  Preventive 
Detention  of  Habitual  Criminals,  an  Act  that  would  be 
very  valuable  if  it  were  more  regularly  enforced. 

Crime  is  due  to  temptation  acting  upon  temperament. 
Temptation  can  be  diminished  in  the  various  ways  de- 
scribed above,  but  it  can  never  be  entirely  abolished. 
That  which  is  no  temptation  to  one  holds  out  a  powerful 
allurement  to  another,  and  the  circumstances  of  each 
man's  life  will  always  provide  temptation  of  some  kind 
that  is  attractive  to  him.  Whether  he  shall  fall,  and 
commit  the  crime  to  which  he  is  tempted,  will  depend 
upon  his  mental  constitution,  his  make-up,  the  absolute 
and  relative  strength  of  his  different  desires  and  of  his 
will,  on  the  mental  discipline  in  which  he  has  been 
schooled — in  short,  upon  his  temperament.  Now,  the 
temperament  can  be  modified.  It  is  in  large  part  in- 
herited, it  is  in  large  part  innate,  the  product  of  ancestral 
inheritance;  but  in  large  part  it  is  the  product  of  up- 
bringing and  training,  and  can  be  modified  and  moulded 
by  upbringing  and  training. 


THE  PREVENTION  OF  CRIME  257 

Crime  is  due  to  the  preponderance  of  selfish  action 
over  social  action.  It  is  due  to  the  indulgence  of  selfish- 
ness at  the  cost  of  others,  and  thereby  to  the  injury  of 
society  at  large.  It  is  often  asserted  that  character  may 
be  modified  by  education,  and  the  assertion  is  true;  but 
when  we  inquire  what  is  meant  by  education,  we  find 
that  it  means  chiefly  the  learning  of  Latin.  Now,  learn- 
ing the  Latin  grammar  is  not  likely  of  itself  to  subordin- 
ate selfish  to  social  desires,  or  to  bring  them  under  the 
control  of  the  will.  Still,  it  is  true  that  this  can  be  done 
by  education  if  education  is  understood  aright — if  it  is 
understood  to  be,  not  the  cramming  of  the  mind  with 
knowledge,  for  the  most  part  useless,  but  the  training 
and  direction  and  development  in  due  proportion  of  all 
the  faculties  of  the  mind.  Among  the  most  important 
functions  of  education  is  the  cultivation  and  strengthen- 
ing of  the  spirit  of  sociality,  the  inculcation  of  the  habit 
of  acting  for  the  welfare  of  society  rather  than  from 
selfish  motives.  When  expressed  in  these  words,  the 
project  seems  chimerical;  but  it  is  not  chimerical.  It  is 
constantly  attempted,  and  is  constantly  successful.  The 
mind  of  the  child  and  of  the  schoolboy  is  quite  incapable, 
it  is  true,  of  grasping  the  notion  of  society  at  large,  and  it 
is  hopeless  to  attempt  to  teach  him  to  subordinate  his 
own  wishes  to  the  welfare  of  the  nation;  but  he  is  quite 
capable  of  grasping,  and  constantly  does  grasp,  the  notion 
of  the  little  society,  the  schoolhouse  and  the  school,  to 
which  he  belongs,  and  of  subordinating  his  own  wishes  to 
the  welfare  of  the  school.  The  first  lesson  in  morality  is 
the  cultivation  of  esprit  de  corps.  It  is  because  esprit  de 
corps  is  so  thoroughly  inculcated  and  cultivated  in  our 
public  schools  that  the  education  they  afford,  contemptible 
as  it  is  from  the  intellectual  point  of  view,  is  so  invaluable 
as  a  moral  training.  That  strong  sense  of  the  duty  of 


258  CRIME  AND  CRIMINALS 

acting,  not  for  the  satisfaction  of  selfish  interests,  nor 
for  the  good  of  other  individuals,  but  for  the  welfare  of 
the  whole  society,  is  the  foundation  of  morality.  History, 
experience,  show  that  action  for  the  welfare  of  other  in- 
dividuals may  be  just  as  immoral,  just  as  criminal,  as 
purely  selfish  action.  The  ostensible  motive  of  the  In- 
quisition was  to  save  the  souls  of  its  victims.  But  action 
for  the  benefit  of  the  whole  society  to  which  we  belong, 
however  limited  may  be  our  concept  of  the  society,  is 
always  moral,  and  is  indeed  the  foundation  of  morality. 

Hence  the  importance  of  training  and  education  in  the 
large  sense  in  the  prevention  of  crime.  In  order  that  it 
may  be  effectual,  it  must  be  practiced  upon  the  young. 
The  green  shoot  may  be  bent  and  trained  into  this  shape 
or  that,  but  it  is  useless  to  try  to  bend  the  grown  tree. 
Catch  your  potential  criminal  young,  and  subject  him  to 
proper  training,  and  he  will  not  grow  up  into  a  criminal; 
but  it  is  hopeless  to  attempt  the  reformation  of  the  con- 
firmed habitual  criminal,  and  all  experience  demonstrates 
that  it  is  hopeless.  As  for  the  occasional  criminal,  he 
needs  no  reformation.  He  is  no  more  a  criminal  in  spirit 
than  the  ordinary  law-abiding  citizen.  He  has  been  sub- 
jected to  exceptional  temptation,  and  to  this  temptation 
he  has  succumbed,  as  any  one  else  would  have  done  if 
subjected  to  sufficient  temptation  of  the  right  kind.  As 
for  the  instinctive  criminal,  on  the  other  hand,  he  can 
never  be  reformed.  A  germ  of  sociality  may  be  culti- 
vated, fostered,  and  reared  into  a  strong  and  healthy 
growth;  but  if  no  germ  is  there,  no  plant  can  be  produced, 
are  trying  to  germinate  a  stone. 


THE  DETECTION  OF  CRIME  259 

II.    DETECTION 

The  term  "  detection  of  crime,"  frequently  as  it  is 
employed,  is  a  misnomer.  What  we  mean  when  we  use 
it  is  the  detection,  not  of  crime,  but  of  the  criminal  who 
has  committed  the  crime.  As  a  rule,  crime  needs  no 
detection.  It  is  gross  as  a  mountain,  open,  palpable. 
Detection  begins  when  the  crime  is  known  and  it  is 
desired  to  detect  who  did  it.  In  the  popular  mind,  fed 
upon  fanciful  detective  stories,  the  detection  of  criminals 
consists  in  picking  up  and  tracing  of  "  clues,"  and  is  an 
art  requiring  superhuman  acuteness  and  subtlety  that  are 
ne^er  to  be  found  in  the  regular  police,  but  exist  only  in 
a  few  men  of  rare  genius,  whose  chief  occupation  in  life 
is  to  put  to  shame  the  dolts  of  the  regular  police  force. 

This  is  a  fancy  picture  that  does  not  truly  represent 
the  facts.  Amateur  detectives  are  as  a  rule  childish 
creatures,  whose  acumen  may  be  equal  to  suspecting, 
when  a  man  is  found  with  his  head  battered  in,  that 
"  there  has  been  foul  play,"  but  who  rarely  progress  be- 
yond this  stage,  and,  if  they  do,  emulate  their  fictional 
prototypes  only  in  thwarting  the  plans  of  the  police  and 
obstructing  the  regular  operations. 

There  is  nothing  very  romantic  about  the  detection  of 
criminals.  As  already  stated,  more  than  90  per  cent,  of 
crimes  are  crimes  of  dishonesty,  and  of  these  by  far  the 
larger  proportion  are  committed  by  habitual  thieves, 
each  in  his  own  habitual  way.  The  sensational  murders 
that  catch  the  attention  of  the  public,  and  stand  with  the 
public  as  the  type  of  all  crimes,  are  extremely  exceptional 
and  do  not  amount  to  one  per  ten  thousand  of  all  the 
offenses  that  come  under  the  cognizance  of  the  police. 
Criminals  are  detected,  not  by  the  piercing  insight  of 
genius,  but  by  systematic  investigation  upon  an  orderly 


260  CRIME  AND  CRIMINALS 

plan,  and  by  the  efforts  of  many  men  combined  into  a 
regular  system  according  to  the  able  design  of  General 
Atcherley,  chief  constable  of  the  West  Riding  police. 
Some  such  plan  had  been  in  General  Atcherley's  mind 
for  a  long  time,  but  he  was  unable  to  work  it  out  to  a 
practical  scheme  for  want  of  a  scientific  classification  of 
crimes.  It  was  not  until  he  became  acquainted  with  the 
classification  set  forth  in  my  book  on  Crime  and  Insanity, 
which  is  on  the  same  plan  as  that  contained  in  this  book, 
although  worked  out  with  much  greater  detail,  that  he 
was  able  to  formulate  a  thoroughly  practicable  scheme. 
This  scheme  he  put  at  once  into  force  in  his  own  district; 
it  was  rapidly  taken  up  by  the  chief  constables  of  neigh- 
boring districts,  and  immediately  before  the  war  broke 
out,  a  plan  was  on  foot  for  applying  it  to  the  whole 
country. 

The  systematic  detection  of  criminals  is  founded  en- 
tirely on  the  fact,  to  which  attention  has  been  drawn  in  a 
previous  chapter,  that  every  criminal,  in  common  with 
every  non-criminal,  has  his  own  individuality,  his  own 
idiosyncrasy,  which  stamps  itself  upon  everything  he 
does.  No  two  people  have  exactly  the  same  facial  fea- 
tures. No  two  people  have  exactly  the  same  characters, 
either  bodily  or  mental.  Every  man  has  his  own  original 
aptitudes  and  capabilities,  and  in  every  man  these  apti- 
tudes and  capabilities  have  been  developed  in  certain  ways 
and  to  certain  extents  peculiar  to  him,  by  his  training  and 
education,  by  the  experiences  of  his  life,  and  by  the 
habits  he  has  formed.  In  every  office,  however  numerous 
the  clerks,  the  manager  can  identify  every  clerk  by  his 
handwriting.  In  every  company,  however  many  the  men, 
the  non-commissioned  officers  can  identify  every  man  by 
his  voice.  In  every  workshop,  however  many  the  work- 


THE  DETECTION  OF  CRIME  261 

ers,  the  foreman  can  identify  the  work  of  every  individ- 
ual worker.  Painters,  sculptors,  architects,  musicians, 
composers,  all  are  known  by  their  style,  and  the  product 
of  each  one  can  be  assigned  to  him  by  its  resemblance  to 
his  other  products  and  its  difference  from  the  products 
of  other  artists.  And  so  it  is  with  criminals.  Crimes 
committed  by  occasional  criminals  give  the  police  but 
little  trouble  on  the  whole ;  in  the  first  place  because  such 
crimes  are  few,  and  in  the  second  because  the  circum- 
stances usually  point  at  once  to  the  criminal.  If  a  trust 
fund  has  disappeared,  there  can  be  no  difficulty  in  identi- 
fying the  defaulting  trustee.  If  an  infant  is  murdered, 
thepe-is  not  usually  much  difficulty  in  detecting  the  mother 
as  the  criminal.  Apart  from  sensational  murders,  which 
are  altogether  exceptional,  and  form  but  an  infinitesimal 
proportion  of  the  total  number  of  crimes  committed,  the 
detection  of  criminals  practically  means  the  detection  of 
habitual  thieves,  and  habitual  thieves  are  detected  by  the 
character  of  their  handiwork. 

That  different  criminals  choose  different  modes  of 
criminality  needs  no  demonstration.  The  tramp  who 
steals  linen  from  the  hedges,  or  the  area  sneak  who 
filches  the  milk-cans,  could  not  be  a  fraudulent  trustee  or 
a  company  promoter;  nor  would  the  fraudulent  trustee 
or  company  promoter  pick  a  pocket  or  steal  linen  from 
a  hedge.  The  truth  is  manifest  in  the  case  of  crimes  as 
different  as  these,  but  it  is  still  true  of  crimes  much  more 
closely  alike.  The  mumping  sailor  with  his  false  tale  of 
shipwreck  could  not  change  parts  with  the  begging-letter 
•writer,  nor  the  begging-letter  writer  with  the  bogus  par- 
son or  doctor  who  tells  a  doleful  story  of  a  lost  purse. 
The  welsher  and  the  racecourse  thief  both  carry  on  their 
operations  on  the  turf,  but  they  never  exchange  parts. 


262  CRIME  AND  CRIMINALS 

The  man  who  passes  base  coin  does  not  pass  flash  bank- 
notes; the  railway  thief  is  not  an  hotel  thief;  and  vice 
versa. 

Every  crime  of  a  certain  class  is  committed  by  a  crim- 
inal of  a  corresponding  class:  burglary  by  burglars, 
cardsharping  by  cardsharpers,  pocket-picking  by  pick- 
pockets, bilking  by  bilkers,  and  so  forth;  and  each  crim- 
inal keeps  to  his  own  speciality  for  which  he  is  fitted  by 
natural  aptitude,  by  custom  and  habit.  These  will  not 
allow  him  to  depart  widely  from  the  mode  of  crime  that 
he  has  made  his  own,  even  if  he  wished  to  leave  it  and 
adopt  some  other;  and  experience  shows,  not  only  that 
he  does  not  depart  widely,  but  that  practically  he  does 
not  depart  at  all.  He  works  in  a  very  narrow  groove, 
repeating  the  same  crime  in  the  same  way  day  after  day, 
month  after  month,  and  year  after  year.  Even  if  he  is 
caught  and  punished  for  a  crime  or  for  a  series  of  crimes, 
each  time  he  comes  out  of  prison  he  returns  to  his  old 
ways — because  he  knows  no  other.  If  a  saddler  is  taken 
ill,  he  does  not  upon  recovery  turn  blacksmith  or  baker: 
he  goes  back  to  saddle-making;  and  so  it  is  with  the  pick- 
pocket or  the  coiner.  He  goes  back  to  his  trade  from 
custom  and  habit,  and  because  he  knows  no  other.  The 
consequence  is  that  parallel  with  the  classification  of 
crimes  is  a  classification  of  criminals;  and  that  if  our 
classification  of  crimes  is  made  upon  scientific  principles 
and  is  pursued  into  sufficient  detail,  we  shall  at  length 
arrive  at  characteristic  crimes  that  are  committed  by 
characteristically  small  groups  of  criminals,  and  finally 
at  crimes  that  have  but  a  single  living  perpetrator,  who 
is  either  already  known  to  the  police  or  may  speedily 
become  so.  Hence  the  practical  value  of  a  scientific 
classification,  as  already  stated.  It  was  the  want  of  such 
a  classification  that  prevented  General  Atcherley  from 


THE  DETECTION  OF  CRIME  263 

completing  his  system  of  thief-taking:  it  was  the  supply 
of  such  a  classification  that  enabled  him  to  complete  it. 
Even  in  such  a  purely  practical  matter  as  thief-taking, 
the  value  of  the  systematization  of  knowledge  makes  it- 
self felt. 

If  we  turn  now  from  the  crime  to  the  criminal,  we  may 
take  it  as  an  axiom  that  the  criminal  is  seldom  convicted 
for  his  first  offense,  but  that  sooner  or  later  he  is  caught 
and  convicted;  and  from  that  moment  he  is  a  marked 
man.  He  is  "known  to  the  police,"  and  is  connected 
in  the  police  records  with  a  particular,  specialized  kind  of 
crime.  Whenever  that  particular  crime  is  committed  in 
the*"police  district  in  which  he  is  known,  he  is  inevit- 
ably suspected,  and  there  is  usually  little  difficulty  in 
bringing  the  crime  home  to  him.  But  police  districts 
are  many:  in  England  and  Wales  alone  there  are  190; 
and  his  natural  course,  the  course  that  he  always  takes, 
is  to  move  from  a  district  in  which  he  is  known  to  one 
in  which  he  is  not.  He  is  now  an  habitual  criminal. 
He  has  now  joined  the  great  army  of  "  traveling  thieves  " 
who  make  up  the  bulk  of  the  criminal  population.  In  a 
new  district  in  which  he  is  unknown,  he  enjoys  for  a  time 
immunity  from  capture,  and  perhaps  even  from  suspi- 
cion; but  his  ultimate  capture  is  inevitable  unless  he 
speedily  moves  on,  for  his  immunity  comes  to  an  end  as 
soon  as  he  and  his  methods  and  the  connection  between 
them  are  known.  Here  is  the  value  of  General  Atcher- 
ley's  system.  By  this  system  a  scheme  of  identifying 
marks  is  drawn  up,  and  by  these  identifying  marks,  which 
a  criminal  can  no  more  change  than  he  can  change  his 
facial  features  or  his  finger-marks,  his  crime  is  described. 
They  are  ten  in  number,  and  it  will  not  give  criminals, 
nor  perhaps  the  general  non-criminal  reader,  any  clear 
indication  of  their  nature  if  I  enumerate  them  as  Class- 


264  CRIME  AND  CRIMINALS 

word,  Entry,  Means,  Object,  Time,  Style,  Tale,  Pal, 
Transport,  and  Trade-mark.  It  may  be  anticipated  from 
what  has  been  said,  and  it  is  found  in  experience,  that 
for  the  same  criminal  these  are  always  alike  in  every 
one  of  his  crimes,  and  that  they  are  never  all  alike  in 
two  crimes  by  different  criminals. 

When  a  crime  is  committed,  a  report  of  the  identify- 
ing marks  is  immediately  transmitted  to  a  central  office, 
at  which  it  is  compared  with  other  records;  and  by  this 
means  the  progress  of  a  criminal  can  be  traced  from  town 
to  town,  the  course  that  he  is  likely  to  take  can  be  pre- 
dicted, his  description  and  even  his  photograph  can  be 
forwarded,  not  only  to  the  district  in  which  his  last  crime 
was  committed,  but  also  to  the  two  or  three  districts  in 
one  of  which  his  next  crime  will  be  committed.  In  this 
way  his  speedy  apprehension  will  be  rendered  certain. 
This,  and  not  the  piercing  insight  of  an  amateur  genius, 
is  the  means  by  which  criminals  are  detected  and  con- 
nected with  their  crimes. 

III.    PUNISHMENT 

The  meaning  and  purpose  of  punishment  are  fully 
discussed  in  my  book  on  Criminal  Responsibility,  and 
since  that  book  was  written,  fourteen  years  ago,  I  have 
seen  no  reason  to  change  the  view  therein  expressed.  It 
is  necessary,  therefore,  to  argue  the  matter  here,  and 
I  will  merely  repeat  that  in  my  view  the  purpose  for 
which  punishment  is  inflicted  upon  criminals  are  retalia- 
tion, deterrence,  and  reform.  That  is  to  say,  we  punish 
the  offender,  first  and  most,  in  order  that  he  may  suffer 
pain  in  return  for  the  pain  that  he  has  inflicted;  second, 
as  a  subsidiary  but  still  important  purpose,  to  deter  him 
from  repeating  his  offense,  and  to  deter  others  from 


THE  PUNISHMENT  OF  CRIME  265 

emulating  it;  and  third,  as  a  minor  and  much  less  im- 
portant purpose,  an  afterthought,  to  reform  him — that 
is,  to  alter  his  mental  constitution  or  temperament  so  that 
he  may  no  longer  wish  to  commit  crime.  We  are  to  in- 
quire by  what  means  these  ends  can  be  best  attained. 

i.  RETALIATION. — The  primary  purpose  of  punish- 
ment is  to  inflict  pain  upon  the  offender  in  retaliation 
for  the  pain  that  he  has  inflicted.  When  we  ourselves 
suffer  injury  at  the  hands  of  another  person,  we  have  an 
ingrained  and  deep-seated  desire,  the  biological  impor- 
tance of  which  is  manifest  on  the  face  of  it,  to  inflict 
injury  in  return;  only  so  can  we  live  in  security.  When 
we  jvkness  the  infliction  of  injury  upon  other  members 
of  the  society  to  which  we  belong,  or  upon  the  society 
itself,  we  feel  a  similar  craving  to  inflict  injury  upon  the 
offender,  and  again  the  biological  significance  of  the 
desire  is  manifest.  It  is  a  safeguard  to  the  society.  If 
such  injuries  are  permitted,  if  they  may  be  inflicted  with 
impunity,  society  will  sooner  or  later  be  destroyed.  Re- 
taliation and  deterrence  have  the  same  root,  and  it  may 
be  that  deterrence  is  the  more  primitive,  or  at  least  of 
equally  primitive  origin;  but  in  actual  practice  it  takes 
second  rank,  as  the  means  so  often  succeeds  in  ousting 
and  superseding  the  end  for  which  it  was  originally  em- 
ployed. 

There  is  more  in  retaliation,  however,  than  the  mere 
infliction  of  injury  upon  the  offender  in  return  for  the 
5njury  that  he  has  done.  The  same  craving  that  impels 
us  to  give  him  pain  impels  us  to  preserve  a  certain  pro- 
portion between  the  injury  that  he  has  inflicted  and  the 
injury  that  he  shall  suffer,  or  rather  between  the  turpi- 
tude of  his  offense  and  the  severity  of  the  punishment. 
No  one  would  be  content  to  inflict  a  reprimand  upon  a 
very  atrocious  murderer:  every  one  would  feel  the  in- 


266  CRIME  AND  CRIMINALS 

justice  of  visiting  upon  a  trifling  theft,  or  upon  neglect 
to  light  a  tail  lamp,  the  penalty  of  death.  There  must 
be  a  certain  proportion  between  the  severity  of  the  pun- 
ishment and  the  turpitude  of  the  offense  for  which  it  is 
inflicted;  and  this  leads  us  to  inquire  in  what  the  turpi- 
tude of  an  offense  consists. 

It  is  stated  here,  and  it  is  generally  admitted,  that 
crime  is  action  injurious  to  society;  and  if  this  is  so, 
then  it  should  seem  that  the  turpitude  of  the  crime  is 
proportional  to  the  amount  of  injury  that  it  inflicts  upon 
society.  The  greater  the  injury  inflicted  on  society,  the 
greater  the  turpitude  of  the  crime,  and  vice  versa,  and 
no  other  factor  should  be  regarded.  This  is  explicitly 
laid  down  by  Bentham,  and  it  seems  to  be  implicitly  held 
by  Beccaria,  and  I  do  not  say  that  it  is  incorrect;  but  the 
injury  inflicted  upon  society  is  certainly  not  the  only  con- 
sideration in  the  mind  of  the  judge  when  he  is  fixing  the 
punishment  to  be  awarded  to  the  convict  before  him. 
Homicide  is  homicide,  and  the  death  of  two  persons  of 
equal  usefulness  and  importance  to  society  inflicts  equal 
injuries  on  society.  Yet  the  one  may  be  a  brutal  and 
deliberate  murder  from  a  sordid  motive,  and  may  be 
therefore  of  the  utmost  turpitude  and  rightly  incur  the 
extreme  penalty;  while  the  other  may  have  been  com- 
mitted on  the  spur  of  the  moment  and  under  extreme 
provocation,  may  therefore  be  of  little  turpitude,  and 
may  rightly  be  visited  with  a  trifling  punishment  or  with 
none  at  all.  Again,  the  theft  of  an  old  pair  of  boots  is 
but  a  trifling  injury  to  society,  and,  if  committed  by  a  lad 
whose  first  crime  it  is,  may  rightly  be  regarded  as  of 
little  turpitude,  and  allowed  to  go  without  punishment; 
but  the  same  theft  committed  by  a  hardened  habitual 
offender  who  has  spent  his  life  in  committing  crime  is 
rightly  punished  with  great  severity.  These  discordant 


THE  PUNISHMENT  OF  CRIME  267 

views  and  practices  may  be  completely  reconciled  if  we 
bear  in  mind  the  clear  difference  there  is  between  the  tur- 
pitude of  the  crime  and  the  turpitude  of  the  criminal. 
As  far  as  I  know,  the  distinction,  though  clear  enough, 
and  always  taken  into  account  in  awarding  punishment, 
has  never  been  explicitly  recognized.  But  it  is  manifest 
that  in  awarding  punishment  we  do  not  punish  the  crime : 
we  punish  the  criminal;  and  we  award  our  punishment 
according  to  the  turpitude,  not  of  the  crime,  but  of  the 
criminal.  The  turpitude  of  the  crime  is  certainly  an  ele- 
ment in  that  of  the  criminal,  but  it  is  far  from  being  the 
only  element,  as  the  following  analysis  will  show;  and 
everf  in  estimating  the  turpitude  of  the  crime,  much  more 
is  taken  into  consideration  than  the  amount  of  injury 
done  to  society.  The  factors  that  determine  the  turpi- 
tude of  the  criminal,  either  directly  or  by  modifying  the 
turpitude  of  the  crime,  are  as  follows: — 

(a)  The  Motive. — The  more  purely  selfish  the 
motive,  the  greater  the  turpitude  of  the  criminal;  the 
more  a  desire  for  the  welfare  of  others  enters  into  the 
motive,  the  more  excusable  the  crime  appears.  This  is 
well  seen  in  crimes  committed  for  the  benefit  of  the 
offender's  family.  The  burglar  who  sits  down  to  a  good 
meal  in  the  house  in  which  his  depredations  are  com- 
mitted finds  no  one  to  palliate  his  offense ;  but  if,  instead 
of  himself  consuming  the  victuals,  he  took  them  home 
and  distributed  them  to  his  children  without  sharing 
them  himself,  we  should  look  with  a  more  lenient  eye 
upon  his  depredations.  We  should  consider  that  he  is 
not  such  a  very  bad  fellow  after  all,  that  there  is  some- 
thing to  be  said  for  him;  and  we  should  be  inclined  to 
mitigate  his  punishment  accordingly.  Political  offenses 
stand  in  a  class  by  themselves,  and,  other  things  equal, 
are  visited  with  a  mitigated  punishment.  They  are  not 


268  CRIME  AND  CRIMINALS 

subject  to  extradition.  Bitter  complaint  is  made  if  a 
political  offender  is  treated  as  a  common  criminal.  It  is 
taken  for  granted  that  he  is  entitled  to  greater  leniency; 
and  for  this  feeling  there  is  no  foundation  except  in  the 
fact  that  his  motive  is  unselfish,  or  relatively  unselfish. 
His  crime  has  been  committed  not  solely  for  his  own 
benefit,  perhaps  not  at  all  for  his  own  benefit,  but  for 
what  he  believes  to  be  the  benefit  of  others;  and  the  un- 
selfishness of  the  crime  diminishes  its  turpitude. 

Sir  Fitzjames  Stephen  insists  strongly  upon  the  im- 
piopriety  of  taking  into  consideration  the  motive  of  an 
act  in  determining  its  guilt  or  innocence,  and  no  doubt  in 
this  he  is  right;  but  it  by  no  means  follows  that  motive 
should  not  be  considered  in  determining  the  degree  of 
its  turpitude  when  once  the  act  is  found  to  be  an  offense ; 
and  though  this  very  learned  judge  would  never  have 
allowed  a  jury  to  take  the  motive  of  an  act  into  con- 
sideration, nor  would  he  have  mentioned  it  in  his  sum- 
ming up  except  to  warn  the  jury  to  disregard  it,  yet 
undoubtedly  he  himself  took  it  into  consideration  in  pass- 
ing sentence. 

(b)  The  Intention. — It  is  curious  that,  although  in 
English  law  the  intention  is  one  of  the  most  important 
factors  in  determining  whether  the  offender  is  guilty  or 
not,  and  of  what  crime  he  is  guilty,  yet  with  these  excep- 
tions it  is  not  taken  into  account  at  all  in  determining  the 
degree  of  his  guilt.  I  have  already  discussed  this  in  a 
previous  chapter,  and  have  shown,  as  it  seems  to  me 
conclusively,  that  the  turpitude  of  the  criminal  is  deter- 
mined, other  things  equal,  by  his  intention.  If  he  does 
a  criminal  act  with  a  certain  intent,  then  he  is  rightly 
punishable,  not  for  what  he  succeeds  in  doing,  but  for 
what  he  intends  to  do.  If  he  puts  his  hand  into  another 
man's  pocket,  intending  to  steal  what  is  in  it,  and  the 


THE  PUNISHMENT  OF  CRIME  269 

pocket  happens  to  be  empty,  he  cannot,  even  though  he 
is  caught  in  the  act,  be  punished  for  picking  the  pocket; 
but  it  is  as  clear  as  day  that  his  guilt  is  the  same  whether 
the  pocket  is  full  or  empty.  The  intention  not  only 
makes  the  act  a  crime,  but  also  determines  the  degree  of 
criminality.  There  is  no  question  here  of  his  heart  fail- 
ing or  his  intention  wavering  at  the  moment  of  committing 
the  deed.  What  he  does  he  does  with  a  certain  fixed  and 
unwavering  intention,  and  for  that  intention  he  should 
be  punished,  however  unsuccessful  his  act  may  be. 

It  may  be,  on  the  other  hand,  that  the  consequences  of 
his  act -are  much  more  serious  than  his  intention.  The 
classical  case  is  that  of  the  man  who  shot  at  the  hen, 
unintentionally  killed  a  man,  and  found  himself  indicted 
for  murder  and  convicted.  Such  a  conviction  is  ridicu- 
lous, and  subversive  of  all  respect  for  the  law.  It  is  in- 
defensible and  intolerable;  but  it  cannot  be  avoided 
except  by  allowing  the  intention  to  determine,  other 
things  being  equal,  the  turpitude  of  the  crime.  The 
principle  is  already  admitted,  and  is  already  thoroughly 
recognized  in  law,  and  enters  into  the  formal  indictment 
in  many  crimes;  but  with  that  illogicality  that  the  Eng- 
lish pride  themselves  upon  in  all  their  proceedings,  it  is 
not  carried  to  its  logical  conclusion,  and  the  result  is  that 
the  criminal  law  of  this  country  is  full  of  absurdities  and 
is  in  many  respects  revolting  to  common  sense. 

(c)  The  Temptation. — The  turpitude  of  a  crime  is 
universally  estimated  as  in  inverse  proportion  to  the  temp- 
tation under  which  it  is  committed,  other  things,  of 
Course,  being  equal.  A  petty  theft  by  a  rich  man  is  in- 
excusable and  unpardonable.  There  is  a  meanness  in  it 
that  is  peculiarly  repulsive;  and  if  we  inquire  in  what  this 
repulsiveness  consists,  we  must  reply  that  it  is  in  the 
absence  of  temptation.  On  the  other  hand,  if  a  cabman 


270  CRIME  AND  CRIMINALS 

in  putting  up  his  cab  for  the  night  finds  loose  money  on 
the  seat,  the  temptation  is  very  strong  to  appropriate  it 
and  say  nothing  about  it.  The  act  is  wrong,  no  doubt, 
but  its  turpitude  is  attenuated  and  minimized  by  the 
strength  of  the  temptation.  The  chauffeur  who  steals 
the  use  of  his  master's  car  in  order  to  give  a  joy-ride  to 
his  friends  acts  under  no  great  temptation,  and  is  the 
more  inexcusable;  but  if  his  child  is  taken  ill,  and  in 
order  to  summon  the  doctor  he  borrows  his  neighbor's 
bicycle  without  that  neighbor's  leave,  the  act  is  excus- 
able, and  is  so  partly  on  the  ground  of  the  urgency  of  the 
the  temptation,  though  no  doubt  the  motive  also  may  be 
pleaded  in  extenuation.  If  he  borrows  it  without  leave 
in  order  to  send  a  telegram  that  will  secure  him  a  much 
more  advantageous  post  than  that  which  he  holds,  the 
motive  is  purely  selfish;  but  still,  the  urgency  of  the 
temptation  may  be  pleaded  in  mitigation  of  the  offense, 
supposing  the  act  were  an  offense,  as  it  ought  to  be. 

(d)  The  Magnitude  of  the  Injury. — The  third  ele- 
ment in  the  turpitude  of  an  act  is  the  magnitude  of  the 
injury  it  inflicts,  an  element  that  needs  little  insistence. 
Every  one  will  acknowledge  that  murder  is  a  more  hein- 
ous crime  than  highway  robbery,  and  highway  robbery 
than  picking  a  pocket;  that  it  is  more  wicked  to  swindle 
a  man  out  of  his  whole  fortune  than  to  steal  his  purse, 
and  so  forth;  but  the  next  element  in  the  turpitude  of  an 
offense  is  less  obvious,  and  I  do  not  know  that  it  has  been 
pointed  out  by  any  one  but  myself.    It  consists  in 

(e)  The  Proportion  of  the  Injury  Inflicted  to  the 
Benefit  Sought. — All  crime  is  at  bottom  selfishness,  and 
the  greater  the  selfishness  the  greater  the  crime.     "  It  is 
the  nature  of  extreme  self-lovers,"  says  Bacon,  "  as  they 
will  set  a  house  on  fire  an  it  were  but  to  roast  their  eggs  " 


THE  PUNISHMENT  OF  CRIME  271 

— an  act  of  great  turpitude  on  account  of  the  magnitude 
of  the  injury  inflicted  in  comparison  with  the  trifling 
character  of  the  benefit  gained.  To  destroy  a  costly 
fur  cloak  in  sheer  wantonness,  to  destroy  it  out  of  re- 
venge for  some  deadly  injury  inflicted  by  its  owner,  and 
to  destroy  it  by  wrapping  it  round  oneself  to  extinguish 
one's  burning  garments,  illustrate  three  degrees  of  turpi- 
tude. The  amount  of  injury  inflicted  is  the  same  in  all 
three;  but  the  degrees  of  turpitude  in  the  same  act  are 
very  different,  and  the  difference  consists  in  the  different 
proportions  that  the  injury  inflicted  bears  to  the  benefit 
to  the  actor  that  is  sought  by  the  act.  It  may  of  course 
be  said  that  the  difference  is  in  the  motive,  and  this  would 
of  course  be  true ;  but  the  difference  is  not  in  the  selfish- 
ness of  the  motive.  In  each  case  the  act  is  self-regarding, 
and  is  done  for  the  benefit  of  the  actor.  The  real  dif- 
ference is  in  the  proportion  that  the  injury  inflicted  bears 
to  the  benefit  sought. 

(/)  The  Deliberation. — An  impulsive  act  committed 
on  the  spur  of  the  moment  is  always  and  rightly  deemed 
of  less  turpitude  than  an  act  committed  with  forethought 
and  deliberation;  weighed,  considered,  and  decided  upon 
at  leisure,  and  carried  out  in  conformity  with  a  pre- 
determined intention;  and,  other  things  equal,  the  turpi- 
tude of  the  act  is  greater  the  longer  the  act  has  been 
contemplated,  and  the  more  elaborate  the  arrangements 
made  to  carry  it  out.  To  snatch  in  passing  an  article 
exposed  on  an  open  stall  is  an  act  of  less  turpitude  than 
to  leave  home  and  visit  the  stall  for  the  purpose  of  steal- 
ixig  an  article  from  off  it;  and  this  again  is  of  less  turpi- 
tude than  to  survey  the  premises  beforehand,  to  plan  how 
they  can  be  entered,  to  provide  oneself  with  the  necessary 
tools,  and  to  break  and  enter  the  house  to  steal  the  same 


272  CRIME  AND  CRIMINALS 

article.  There  is  no  need  to  labor  the  point  or  to  illus- 
trate it  further,  for  it  is  universally  admitted,  and  is  em- 
bodied in  the  law  of  every  nation. 

(g)  The  Alarm. — Some  writers,  especially  Bentham, 
attach  great  importance  to  the  amount  of  alarm  pro- 
duced by  a  crime,  and  reckon  the  degree  of  alarm  it 
produces  and  the  wideness  with  which  the  alarm  is  dif- 
fused as  factors  in  the  turpitude  of  the  offense.  I  am  not 
sure  that  this  can  properly  be  so  considered,  but  in  prac- 
tice it  certainly  does  add  to  the  severity  of  the  punishment 
allotted  to  the  offense,  as  those  who  remember  the  gar- 
rotting in  the  late  'sixties  of  last  century  can  testify.  It 
may  therefore  properly  be  mentioned  here. 

(h)  The  Danger. — Another  factor  that  contributes 
to  the  turpitude  of  the  criminal  is  the  danger  incurred  by 
society  or  any  part  of  it  by  reason  of  his  crime.  The 
danger  incurred  is  of  course  quite  apart,  on  the  one  hand 
from  the  alarm  caused,  and  on  the  other  from  the  harm 
inflicted.  It  may  easily  happen  that  the  former  factor 
is  present  when  both  the  latter  are  wanting.  He  who 
leaves  explosives  lying  about,  or  takes  matches  into  a 
powder  factory,  or  lights  his  pipe  under  the  lee  of  a  corn- 
rick,  may  not  cause  any  actual  harm,  and,  if  his  action 
is  unknown,  produces  no  alarm  among  his  neighbors;  but 
nevertheless  the  action  is  highly  criminal,  and  is  so  be- 
cause of  the  danger  that  is  incurred  among  them  by  rea- 
son of  it. 

(i)  The  Record  of  the  Criminal. — The  universal 
practice  of  the  courts,  no  less  in  other  countries  than  in 
our  own,  is  to  take  into  consideration,  in  awarding  punish- 
ment, the  record  of  the  criminal,  and  to  treat  him  with 
leniency  if  the  crime  under  consideration  is  his  first  of- 
fense, but  to  increase  the  severity  of  the  punishment  with 


THE  PUNISHMENT  OF  CRIME  273 

the  number  of  crimes  that  he  is  known  to  have  committed, 
for  some  or  all  of  which  he  have  may  been  already  pun- 
ished. The  only  justification,  indeed  the  only  explana- 
tion, of  this  practice  is  that  each  additional  crime  adds  to 
the  turpitude,  not  of  the  last  crime,  but  of  the  criminal 
who  has  committed  it.  We  sometimes  see  an  offender 
sentenced  to  a  very  heavy  punishment  for  some  very 
trifling  offense,  such  as  stealing  a  pair  of  boots,  for  which 
another  offender  would  get  off  scot-free  after  conviction. 
The  explanation  is  in  the  respective  records  of  the  two 
offenders.  The  first  is  an  old  offender,  whose  depreda- 
tions, each  of  them  it  may  be  but  trifling,  have  continued 
f ot~the  greater  part  of  a  lifetime ;  while  the  crime  of  the 
second  is  the  first  offense. 

(k)  The  Frequency  of  the  Crime. — Lastly,  without 
contributing  to  the  turpitude  either  of  the  crime  or  of  the 
criminal,  the  frequency  of  the  crime  weighs  with  the 
judge  in  apportioning  the  severity  of  the  punishment. 
A  crime  that  is  frequently  committed — and  there  are 
fashions  in  crimes  as  in  every  other  mode  of  human  con- 
duct— is  punished  more  severely,  other  things  being 
equal,  than  a  crime  of  equal  turpitude  that  is  rarely  com- 
mitted. Especially  when  the  crime  is  increasing  in  fre- 
quency it  is  held  to  warrant  a  severer  punishment.  We 
have  recently  seen  a  considerable  increase  of  the  crime 
of  bigamy,  a  crime  that  is  usually  regarded  with  some 
leniency,  and  that  was  at  first  treated  with  leniency  when 
committed  by  soldiers  who  had  fought  in  this  war. 
Partly  in  consequence,  no  doubt,  of  this  leniency,  the 
crime  became  frequent,  and  as  it  became  frequent  it  was 
treated  with  greater  severity.  Fifty  years  ago,  the  crime 
of  garrotting  originated  and  became  frequent;  and  as  it 
became  more  frequent,  it  was  punished  with  greater  se- 


274  CRIME  AND  CRIMINALS 

verity.  Judges  and  magistrates  are  accustomed  to  ad- 
duce the  frequency  of  a  crime  as  a  reason  for  punishing 
it  severely. 

All  these  ten  factors  should  influence  the  judge,  and  no 
doubt  do  influence  him,  consciously  or  unconsciously,  in 
awarding  punishment  to  a  criminal  for  a  crime.  Accord- 
ing as  the  judge  estimates  the  degree  or  the  nature  of 
these  factors,  he  will  increase  or  diminish  the  severity  of 
the  punishment  that  he  would  otherwise  have  awarded, 
and  there  will  be  little  doubt  in  his  mind  as  to  the  direc- 
tion, whether  towards  increase  or  diminution  of  the 
punishment,  in  which  he  should  be  moved  by  a  considera- 
tion of  each  factor.  The  more  unselfish  the  motive,  the 
lighter  will  be  the  punishment;  the  more  deliberate  the 
action,  the  heavier  will  be  the  punishment;  and  so  on. 
But  there  is  one  factor  as  to  which  there  may  be  a  doubt 
whether  it  ought  to  incline  him  to  severity  or  to  mildness. 
This  is  the  amount  of  temptation.  Ought  a  crime  that 
is  committed  under  stress  of  great  temptation  to  be 
punished  more  severely  or  less  severely  on  that  account? 
Bentham  has  no  hesitation  in  deciding  that  it  should  be 
punished  more  severely.  The  greater  the  temptation  to 
commit  a  crime,  the  more  severely  the  criminal  who  suc- 
cumbs to  the  temptation  should  be  punished,  or,  as  he 
puts  it,  "  the  quantum  of  the  punishment  must  rise  with 
the  profit  of  the  offense;  cceteris  paribus,  it  must  therefore 
rise  with  the  strength  of  the  temptation.  This  there  is 
no  disputing."  And  again,  he  speaks  of  "  the  maxim 
that  the  punishment  must  rise  with  the  strength  of  the 
temptation ;  a  maxim,  the  contrary  of  which,  as  we  shall 
see,  would  be  as  cruel  to  the  offenders  themselves,  as  it 
would  be  subversive  of  the  purposes  of  punishment." 

In  spite  of  the  confidence  of  Bentham's  assertion,  his 
maxim  has  never  been  followed  in  practice.  The  quan- 


THE  PUNISHMENT  OF  CRIME  275 

turn  of  punishment  does  not  in  fact  rise  with  the  strength 
of  the  temptation.  On  the  contrary,  it  falls.  The  more 
severe  the  temptation  under  which  an  offense  has  been 
committed,  the  lighter,  other  things  being  equal,  is  the 
punishment  inflicted;  and  the  practice  is  in  accordance 
with  the  general  sentiment  of  the  public,  and  has  never 
been  called  in  question  except  by  Bentham.  And  Bent- 
ham  never  gave  his  opinion  lightly  or  without  adducing 
very  cogent  reasons.  In  this  matter  his  reasons  are  un- 
answerable if  we  allow  his  major  premiss,  which  is  in- 
dicated in  the  concluding  words  of  the  first  quotation 
I  have  given.  Not  to  make  the  quantum  of  punishment 
rise  "with  the  strength  of  the  temptation  "  would  be  sub- 
versive of  the  purposes  of  punishment."  But  according 
to  Bentham,  the  purposes  of  punishment  are  purely 
utilitarian.  They  are  solely  to  restrain  the  offender  from 
repeating  his  offense,  and  to  warn  others  against  com- 
mitting it.  In  other  words,  the  purpose  of  punishment 
is  purely  and  solely  to  deter;  and  if  deterrence  is  the 
only  purpose  of  punishment,  Bentham' s  reasoning  cannot 
be  impugned,  nor  can  his  conclusion  be  questioned.  But 
in  fact  his  maxim  has  never  been  accepted  and  never 
been  followed.  He  says  the  contrary  of  it  would  be 
cruelty;  but  it  is  the  cruelty  of  acting  on  the  maxim  itself 
that  has  prevented  it  from  ever  being  acted  upon.  There 
could  be  no  clearer  proof  of  the  error  of  his  maxim. 
There  could  be  no  clearer  proof  that  it  is  false  to  sup- 
pose that  (the  sole  purpose,  or  even  the  main  purpose,  of 
punishment  is  deterrence.  It  is  not,  and  the  weight  that 
is  allowed  to  temptation  in  mitigating  punishment  proves 
that  it  is  not.  Punishment  is  primarily  imposed  in 
retaliation,  and  as  in  retaliation,  therefore  in  proportion 
to  the  turpitude  of  the  criminal,  and  not  in  proportion 
to  its  effect  in  deterring  him  and  others  from  committing 


276  CRIME  AND  CRIMINALS 

future  crimes.  I  do  not  say  that  deterrence  is  no  part  of 
the  purpose  of  punishment;  but  I  say  that  the  mitigating 
weight  allowed  to  temptation  proves  indisputably  that 
deterrence  is  not  ^he  sole  purpose  of  punishment.  I  do 
not  say  that  seventy  of  punishment  is  without  effect  in 
deterring  would-be  criminals  from  committing  crime ;  but 
I  assert  with  the  utmost  confidence  that  it  has  little  effect 
in  comparison  with  other  ingredients  in  punishment. 
These  ingredients  are  now  to  be  discussed. 

2.  DETERRENCE. — How,  then,  are  would-be  crim- 
inals to  be  deterred  from  committing  the  crimes  to  which 
they  are  inclined?  Certainly  not  solely  by  severity  of 
punishment:  probably  very  little  indeed  by  severity  of 
punishment.  Severity  has  been  tried  for  many,  many 
generations,  and  by  itself  has  utterly  failed.  The  hor- 
rible punishments  awarded  in  this  and  other  countries  to 
high  treason  never  prevented  high  treason,  and,  as  it 
appears  from  history,  had  very  little  effect  in  deterring 
people  from  committing  high  treason.  The  partial  hang- 
ings, followed  by  mutilation  and  disemboweling  of  the 
still  living  culprit,  the  quarterings,  the  breaking  on  the 
wheel,  the  dungeon,  the  rack,  the  boot,  the  burning  alive, 
and  a  score  of  other  ingenious  and  diabolical  tortures, 
were  never  effectual  in  deterring  would-be  traitors  from 
committing  high  treason.  The  hangings,  the  transporta- 
tions, the  imprisonment  in  foul  and  noisome  prisons,  the 
floggings,  the  pillories,  the  brandings  and  mutilations, 
never  sufficed  to  deter  people  from  committing  crimes. 
On  the  contrary,  in  the  days  of  these  savage  punishments 
crimes  were  far  more  frequent  and  far  more  brutal  than 
they  are  now.  Severity  of  punishment  has  had  its  trial, 
and  it  has  utterly  failed.  What,  then,  is  the  alternative? 

The  root  of  crime  is  selfishness.  With  but  very  few 
exceptions  crime  is  committed  in  order  to  secure  for  the 


THE  PUNISHMENT  OF  CRIME  277 

criminal  some  profit,  some  satisfaction,  the  gratification 
of  some  desire  or  of  some  aversion.  Now,  if  the  criminal 
is  assured  beforehand  that  his  purpose  will  be  achieved, 
but  that  it  may  entail  upon  him  unpleasant  consequences, 
he  will  not,  as  human  nature  is  constituted,  be  much  de- 
terred from  the  action  he  contemplates.  He  will  take  the 
risk.  When  the  risk  of  suffering  unpleasant  conse- 
quences is  not  great,  he  will  certainly  take  the  risk. 
When  the  risk  is  considerable,  he  will  still  be  inclined  to 
take  it,  for  the  gratification  that  he  gains  by  the  crime  is 
certain,  and  the  punishment  he  may  suffer  is  uncertain. 
At  the  present  time  in  England  his  chances  of  impunity 
art" on  the  average  about  six  in  seven,  for  in  1911  97,171 
indictable  crimes  were  reported  to  the  police,  and  only 
13,165  convictions  were  obtained.  The  habitual  criminal 
has  little  foresight.  The  habitual  criminal  in  the  higher 
ranks  of  crime,  the  forger,  the  coiner,  the  breaker  of 
jewelers'  safes,  the  accomplished  swindler,  in  short  the 
professional  criminal  as  we  may  call  him,  is  by  nature  a 
gambler.  It  is  his  delight  to  run  risks  and  to  gamble  on 
chances.  The  frequenter  of  the  tables  at  Homburg  or 
Monte  Carlo  knows  quite  well  that  the  chances  are 
against  him,  and  that  it  is  a  mathematical  certainty  that 
if  he  goes  on  long  enough  he  must  lose;  but  the  fascina- 
tion of  the  chance  is  too  great.  He  thinks  that  in  his  own 
case  the  laws  of  mathematics  will  be  suspended;  and  so  he 
gambles — and  loses.  And  so  it  is  with  the  criminal.  He 
gambles,  and  in  the  long  run  he  usually  loses;  but  he  does 
not  always  lose.  Some  of  his  ventures,  perhaps  many  of 
his  ventures,  are  successful.  Enough  may  be  successful 
to  compensate  him  for  his  failures;  and  if  they  are  not 
yet  so,  he  always  hopes  that  they  will  be.  At  any  rate, 
he  almost  always  has  a  run  for  his  money.  Justice  is 
never  sure,  and,  even  if  it  were  sure,  it  comes  with  3 


278  CRIME  AND  CRIMINALS 

leaden  foot.  The  criminal  is  not  a  thrifty  calculator, 
but  even  if  he  were,  he  might  decide  that  a  certain  and 
speedy  enjoyment  is  worth  the  risk  of  a  punishment  that 
will  certainly  be  delayed,  and  may  never  reach  him  at  all. 

The  inference  is  obvious.  If  punishment  is  to  deter 
from  crime,  it  need  not  be  severe,  but  it  must  be  enough 
to  render  the  crime  unprofitable.  It  need  be  no  more 
than  this,  but  it  must  be  certain,  and  it  must  be  speedy. 
Severity  of  punishment  does  not  deter.  That  has  been 
proved  by  universal  experience.  But  if  the  thief  knows 
for  certain  that,  the  moment  he  has  stolen,  the  property 
will  be  taken  from  his  hand  and  restored  to  its  owner, 
he  will  not  steal.  It  will  not  be  worth  while.  No  punish- 
ment at  all  will  be  needed.  The  unprofitable  expenditure 
of  time,  trouble,  and  ingenuity  will  be  its  own  punishment. 
In  other  words,  all  that  is  necessary  to  deter  the  criminal 
from  committing  crime  is  to  deprive  him  promptly  of  the 
fruits  of  his  crime.  If  this  is  not  done,  punishment  will 
be  inefficacious.  If  it  is  done,  punishment  will  be  unneces- 
sary. These,  then,  are  the  objects  to  be  striven  for. 

In  the  first  and  most  elementary  of  these  conditions  the 
law  is  lamentably  deficient.  It  makes  very  inadequate 
provisions  for  depriving  the  criminal  of  the  fruits  of  his 
crime,  and  in  many  cases  it  makes  no  provision  at  all. 
Of  course,  there  are  many  cases  in  which  no  such  pro- 
vision can  be  made.  The  satisfaction  gained  by  the  vindic- 
tive or  malicious  injury  to  person  or  property  cannot,  in 
many  cases,  be  taken  away;  and  punishment  must  be  sub- 
stituted for  the  deprivation.  Stolen  property  is  often 
dissipated  irrecoverably  before  the  thief  is  caught;  but 
if  he  were  caught  promptly,  this  would  less  often  hap- 
pen; and  even  if  the  property  has  been  dissipated,  yet  in 
many  cases  reparation  could  be  made.  It  is  in  this  that 
the  English  criminal  law  is  so  deplorably  defective.  It 


THE  PUNISHMENT  OF  CRIME  279 

makes  no  provision  for  reparation.  It  permits  the  thief 
to  accumulate  stolen  property,  to  retain  it  even  while  he 
is  imprisoned  for  stealing,  and  to  enjoy  it  upon  his  re- 
lease. Nay,  in  some  cases  the  thief  has  entrusted  to  the 
police  officials  his  property,  undoubtedly  ill-gotten,  to  be 
preserved  for  him  during  his  imprisonment,  and  to  be 
restored  to  him  on  his  discharge  from  prison.  This  of 
course  does  not  include  the  proceeds  of  the  crime  for 
which  he  is  actually  convicted;  but  even  these  proceeds 
he  is  not  compelled  to  restore  or  make  reparation  for  if 
they  cannot  be  identified.  This  is  wholly  and  manifestly 
wrong.  In  all  cases  of  stealing,  at  least  a  certain  amount 
of  reparation  should  be  a  necessary  preliminary  to  re- 
lease from  prison.  If  the  criminal  has  no  effects,  let  him 
work  under  supervision  and  control,  and  the  proceeds 
of  his  work,  less  the  minimum  necessary  to  keep  him  in 
health  and  strength,  be  paid  over  to  the  person  he  has 
wronged.  This  is  elementary  justice,  and  it  is  surprising 
that  it  is  not  recognized  and  enforced.  No  doubt  there 
are  practical  difficulties,  but  what  does  man  come  into 
this  world  for  but  to  overcome  difficulties?  Even  if  it 
actually  cost  the  State  more  than  the  labor  of  the  prisoner 
is  worth,  it  would  be  worth  doing  for  its  effect  in  deter- 
ring from  crime. 

Very  insufficient  attention  is  given  by  English  law  to 
making  the  punishment  fit  the  crime,  not  only  in  quantity 
but  also  in  quality  or  nature.  The  French  are  more  in- 
genious, and  their  punishments  in  consequence  more 
efficacious.  When  a  tradesman  has  been  convicted  in 
France  of  adulterating  his  goods  or  of  using  false 
weights  or  measures,  a  copy  of  his  conviction  is  suspended 
in  his  shop,  for  all  his  customers  to  see.  A  more  effect- 
ual deterrent  for  others  it  would  be  difficult  to  devise. 
The  purveyor  of  adulterated  goods  should  be  compelled 


280  CRIME  AND  CRIMINALS 

to  supply  gratis  to  his  injured  customer  an  equal  quantity 
of  unadulterated  goods.  When  a  man  has  wronged 
another,  we  are  content  to  make  the  wrongdoer  make 
pecuniary  compensation  to  his  victim;  but  why  should  he 
not  also  make  public  apology,  and  publish  the  apology 
at  his  own  expense  in  the  newspapers  and  elsewhere  ?  A 
little  thought,  a  little  ingenuity,  might  make  punishments 
far  more  efficacious  by  adapting  them  more  suitably  to 
the  character  of  the  crime.  On  this  principle,  it  is  right 
to  punish  crimes  of  brutal  violence  by  flogging,  a  punish- 
ment much  decried  by  sentimental  humanitarians,  but  un- 
doubtedly efficient,  and  one  to  which  the  objections  are 
entirely  sentimental,  and  not  founded  on  either  reason  or 
the  results  of  experience.  I  say  this  after  having  perused 
an  immense  deal  of  literature — I  should  say  of  writing — 
against  the  practice  of  flogging.  All  that  I  have  read 
bears  the  stamp  of  faddism,  and  is  wholly  unconvincing. 
It  is  on  a  par  with  the  writings  of  the  anti-vivisectionists, 
the  spiritualists,  and  the  adherents  of  other  fads. 

3.  REFORM. — This  has  been  dealt  with  incidentally  in 
other  chapters.  It  is  enough  to  say  here  that  the  occa- 
sional criminal  does  not  need  reformation.  He  is  an 
ordinary  person  who  has  yielded  under  stress  of  tempta- 
tion, as  his  gaoler  or  his  judge  might  yield  if  tempted 
with  enough  severity;  and  it  is  absurd  to  speak  of  re- 
forming him.  The  habitual  criminal  is  beyond  the  reach 
of  reform.  He  cannot  be  reformed  either  by  the  ancient 
method  of  brutal  severity  or  by  the  modern  method  of 
providing  him  with  beer  and  skittles,  with  newspapers 
to  edit  and  lectures  on  Sophocles  to  listen  to.  The  only 
criminal  who  can  be  reformed  is  the  young  criminal 
whose  criminality  is  not  as  yet  confirmed;  and  the  only 
means  by  which  he  can  be  reformed  is  to  teach  him  the 
.delight  of  congenial  labor,  and  the  sweetness  of  obtaining 


PUNISHMENT  OF  CRIME  281 

the  reward  of  labor  in  the  respect  of  his  fellows,  and  in 
increased  opportunities  of  enjoying  his  life  by  enlarging 
and  deepening  and  multiplying  his  interests  in  things 
around  him. 


INDEX 


Abortion,   procuring,   195. 
Abuse  of  official  position,  132. 
Act   for   the   Preventive   Detention 

of  Habitual   Criminals,   the, 

256. 

Action,  definition  of,  48. 
Administration    of    justice,    crimes 

against,  123  et  seg. 
Adultery   an   ecclesiastical   offense, 

191. 

Advertisements,  censorship  of,  255. 
Agent  provocateur,  the,   124. 
Alarm  as  a  factor  in  the  turpitude 

of  offenses,  272. 
American  penitentiaries,  228. 
Anger  a  crime-producing  emotion, 

68. 

how  provoked,  67-8. 
Animals  and  reason,  5. 

property   and   ownership   among, 

J57- 
Anthropological    criminologist,    the 

methods  of,  207  et  seg. 
doctrine,  the,  206. 
Anti-social  crimes,  99. 
Arrest  of  criminals,  126. 
Asceticism,  23,  24,  25. 
Association  of  criminals,  ill-effects 

of,  34. 
Atcherley,     General,     his     method 

for    detection    of    criminals, 

260. 

value  of  the  scheme,  262,  264. 
Austin,  his  definition  of  crime,  70. 
Automatic    action    and    instinctive 

action,  28-29. 
Automatism,  27  el  seg. 
involuntary  nature  of,  28. 
post-epileptic,    28. 
Aversion  and  Desire,  48  et  seg. 

Banknotes,    manufacture    and    for- 
gery of,  135. 
Beccaria,  205,  228,  266. 
on  suicide,  140. 


Bees,  gregarious  and  solitary,   85. 

instinct  of,  9,  12,  13,  20-1. 
Begging-letters,  174. 
Benevolent  laws,  137. 
Bentham,  138,  205,  228,  266. 

his  enumeration  of  suicide,  140. 

on     temptation     to     crime,     274, 

275. 
Bigamy,  144,  190. 

increasing  frequency  of,  273. 
Biology   and   the   social   habit,    73 

et  seg. 
Birds,  instinct  of,  10. 

nidification  of,  10,  13. 
Blackmail,   169 
Blasphemy,  153. 
Breach  of  contract,  171,  174-5. 

of  custom,  1 1 6. 

of  the  peace,  120-1. 

of  warranty,  172. 
Broadhead's     trade-union     crimes, 

H3- 

Burglars,  243,  244. 
Burglary  a  nocturnal  crime,  35. 

Carelessness,    culpability    of,    125, 

126 

Celibacy,   self-control    and,   24. 
Censorship  of  advertisements,  255. 
Chaffinch,  nest-building  of  the,  14. 
Character,   defamation  of,   152. 
Charles  I.,  "  criminality  of,"  71. 
Chastity,  offenses  against,  179,  185. 
Childbirth,  insanity  of,  194. 
Children,    neglect    of    and    cruelty 

to,  191. 

Choice  a  function  of  the  will,  62. 
Church,   the,   curious   inconsistency 

of,  196. 

Civil  courts,  139. 
Classification       of      crimes       and 

criminals,    101,    232,    260    et 

seg. 
Coinage,    the,    a    State    monopoly, 

'35- 


283 


CRIME  AND  CRIMINALS 


Comb-building  of  the  hive-bee,   9, 

J3- 
Company-promoting      and      fraud, 

172. 

Concealment,  172,  173. 
Conception,   prevention  of,   196. 
Conduct  and  Its  Disorders    (Mer- 

cier's),  x,  xiii. 
Conduct,  definition  of,  i. 
external     factor     of     (see     Ex- 
ternal factor). 

internal      factor     of      (see     In- 
ternal factor), 
self-preservative:    two    divisions 

of,  145. 

social,  antagonistic  to  self-pres- 
ervation and  reproduction, 
83.  . 

essentials  for,  87. 
the    motives    to,    48,    143-4    (*ee 

also  Motives). 
Conscientious  objectors,  194. 
Consent     an     essential     of    honest 

transfer,  167. 
Continental   criminologists,   37,   38. 

assumptions  of,   37. 
Contract,  breach  of,  171,  174. 
Coroners'    juries     and    their    ver- 
dicts, 212. 
Crime,   a  special   part  of  conduct, 

xi,  i. 

a  twofold  problem  of,  xi. 
an   incident   of   the   social   state, 

77- 

and  conduct,  I. 
as   conduct   injurious   to   society, 

92,  no. 
circumstances     favoring,     35     et 

definition   of,    i,   70,   71,   92,   98, 

105,    144,   266. 

degree   of  turpitude   and,   108. 
detection  of,  259  et  seq. 
Dr.     Goring's    classification    of, 

242. 

external  factor  of,   32   et   seq. 
factors  of,  i  et  seq. 
genesis    of:    the    external    factor 

in,  41. 

intellect  and,  57,  59. 
internal  factor  of,  26  et  seq. 
kinds  of,  99  et  seq. 
private,  143  et  seq. 
public,  99  et  seq. 


Crime,    knowledge    of    right     and 
wrong,  57,  58. 
mental    constitution    and,    26    et 

seq. 
motives  of,  100,  107,  et  seq.   (see 

also  Motive), 
nature  of,  70  et  seq. 
opportunity  and,  32  et  seq. 
popular  application  of  the  word, 

70. 

prevention  of,  128,  253  et  seq. 
proportion   of  injury  inflicted   to 

the    benefit    sought,    270. 
psychology  of,  47   et  seq. 

desire  and  aversion,  48  et  seq. 
feeling,   65   et  seq. 
intellect,  55  et  seq. 
will,  61   et  seq. 
punishment  of,  264  et  seq. 
study    of,    xi. 
temptation  to,  32  et  seq. 
the    magnitude    of    the     injury, 

270. 

the   product   of   two   factors,   in- 
ternal and  external,  125. 
writer's  doctrine  of,  224. 
Crime    and    Insanity    (Mercier's), 

xiii,    138,   260. 
Crime  passionnel,  the,  67. 
Crimes,  a  peculiar  class  of,  237  et 

seq. 

against  officers  of  State,  130-1. 
against     the     administration     of 

justice,  123  et  seq. 
against  the  Revenue,  129. 
author's  classification  of,  105   et 

seq. 

family  and  racial,  176  et  seq. 
international,  no,  in. 
national,  in  et  seq. 
official  classification  of,  101   (see 

also  Classification), 
of  malice,  145  et  seq. 
of  omission,  125. 
private,  112,  143  et  seq. 
prompted  by  fear,  pugnacity  and 

yindictiveness,  145. 
public,  99  et  seq.,  113  et  seq. 
unrecognized,   vi. 
Criminal     action,     complementary 

factors  of,  2. 
prompted      by      instinct      and 

guided   by    reason,   25. 
intention,    150,   268. 


INDEX 


Criminal  law,  93,  97. 

based  on  determination  of  in- 
tention,  150. 

trials,  English  law  and,  127. 
Criminal      Responsibility       (Mer- 

cier's),   v,  x,   264. 
Criminality  as  madness,  212. 

as  the  product  of  disease,  212. 

determined  by  the  intellect,  60. 

determined  by  volition,  64. 

doctrine    of    the    Environmental 
School,    39,   210,   211. 

Lombroso's    views   on,   205,   209, 
210. 

view  of  the  writer  on,  222  et  seq. 
Criminals   and  non-criminals,   dif- 
ferences  between,    199,   230, 
231. 

arrest  of,  126. 

association   of,    34. 

by  heredity:    Lombroso's    views, 
209,  210,  211. 

detection    of,    259    et    seq.    (see 
also  Detection). 

difference    in    internal    and    ex- 
ternal factors,  200. 

habitual     and     occasional,     232, 
248. 

juvenile,  252,  280-1. 

primitive  view  of,  202. 

subsequent  views,  204  et  seq. 
Cruelty    to    animals    a    punishable 
offense,  137. 

to  children,  191. 
Custom,  34,  94,  95,  115,  116. 

breach  of,  a  crime,  116. 

Danger  and  the  degree  of  turpi- 
tude, 272. 

Deception,   172,   173. 

Deductive  reasoning,  xii,  xiii. 

Defamation  of  character,  152. 

Deliberation    in   crime,   272. 

Desertion,   144,  189,  190. 

Desire  and  Aversion,  48  et  seq. 

Desires,  instinctive,  49,  50. 

Detection  of  crime,  256,  259  et  seq. 
Atcherley's  method  of,  260  et  seq. 

Determination,   definition   of,   64 

Deterrence  as  a  purpose  of  punish- 
ment, 264,  275,  276. 

Direct  public  crimes,  118. 

Dishonesty,  crimes  of,  high  per- 
centage of,  255,  259. 


Divorce,  181. 

Donkin,    Sir    Bryan,    Introduction 

by,  y — vii. 

Double  suicides,  183. 
Drunkenness,  misleading  nature  of 

statistics  of,  219. 

Ecclesiastical   courts,   139,   190. 
Edinburgh,  an  epidemic  of  suicide 

in,  141. 
Education,    the    true    function    of, 


257,  258- 
s,   Ha 


Ellis,   Havelock,  210. 

Emigration,  Beccaria's  view  of,  140. 

Emotions,  67. 

crime-producing,  67. 
(See  also  Anger,  Fear,  Hatred.) 
England,  suicide  a  crime  in,  140. 

and  Wales,  police  districts  in,  263. 
English  Convict  (Goring's),  215. 
Environmental  school  of  criminol- 

ogists,  the,  38,  210,  211. 
Esprit  de  corps,  cultivation  of,  the 
first  lesson  in  morality,  257, 
258. 

Evidence,  the  law  of,  127,  128. 
External    factor,    the,    and    crime, 

2,  32  et  seq.,  125,  200. 
circumstances  and,  32. 
effect    of    circumstances    on,    41 

et  seq. 

in    action,    35    (cf.    also    Oppor- 
tunity, Temptation). 
Extortion,   168. 

False  evidence,  128. 

imprisonment,   171. 
Family  and   racial   crimes,   176   ei 

seq. 
against   chastity    and   modesty, 

185  et  seq. 

against  marriage,  188  et  seq. 
against    the     racial    principle, 

191   et  seq. 

offenses  committed  from  jeal- 
ousy, i 80  et  seq. 
life,  89. 

importance  of,  177. 
Fasting,  24. 
Fear,  68. 

crimes  prompted  by,  145. 
Feeling,  65  et  seq. 

share  of,  in  crime,  67. 
Felo-de-se,  212. 


286 


CRIME  AND  CRIMINALS 


Flogging  as  punishment  for  crimes 
of  violence,  280. 

Forbearance,  86,  87. 
the  root  of  sociality,  145. 

Forgery,   135. 

Fornication,  185,  186,  187. 
an  ecclesiastical  offense,  191. 

France,    an    ingenious    method    of 

deterring   crime    in,   279. 
suicide  not  a  crime  in,  140. 

Frankpledge,  custom  of  the,  126. 

Fraud,    various    kinds    of,    172    et 
seq. 

Free   will    an    essential   of   honest 
transfer,   168. 

Frequency    of    crime    and    punish- 
ment, 273. 

Gain,      offenses     committed      for, 


156. 
Lai 


Game  Laws,  the,  138. 

Garofalo,  doctrines  of,  39. 

Garrotting,   36. 

Germans,  characteristics  of,  32. 

Gladstone,  Mr.,  132. 

Gluttony,  24. 

Goring,   Dr.   46,   60. 

and    the    environmental    school 

of  criminologists,  39. 
author's  tribute  to,  215. 
definition  of  criminal,  71. 
doctrine     of     criminality,     201, 

2ii,  214. 

examination     of    value     of    his 
statistical     method,     215     et 
seq. 
his  classification  of  crimes,   104, 

242. 

statistics  on  divorce,  182. 
Government     Departments,     waste 
in,  130. 

Habit,  27. 

Habitual  criminals,  232,  248. 

two  sub-classes,  241. 
Hatred,  68. 
Hedonistic  Laws,  offenses   against, 

138. 
Heredity,  30. 

criminals  by,  209  et  seq. 
High  treason,  120,  131. 
Highwaymen,   36. 

History  of  the  Criminal  Lav),  the, 
7*. 


Imprisonment,   false,    171. 

India,    suicide    formerly    regarded 

a  duty  in,  140. 

Indirect  public  crimes,  114,  115. 
Individuality    of    criminal    makes 
individuality   in   crime,   242. 
Inductive  reasoning,  xi,  xii. 
Infanticide,  108,  192  et  seq. 
Infidelity,  marital,  181. 
Insanity,   author's   view   of  causa- 
tion of,  223. 

of  childbirth,  194  (see  also  Mad- 
ness). 

Instigation  to  crime,   124. 
Instinct  and  reason,  5  et  seq. 

types  and  examples  of,  8. 
Instinctive     action     and     reasoned 

action,  15,  16. 
and  automatic  action,  29. 
criminals,  210,  233,  235. 
reformation     of,     a     hopeless 
task,     251,     258     (see     also 
Moral  imbeciles), 
desires,  49  et  seq. 
and   reason,   56. 
Instincts,  conflict  of,  99  et  seq. 

racial  and  semi-racial,  89  et  seq. 
Intellect,  55  et  seq. 

and  crime,  57,  58  et  seq. 
(See  also  Reason.) 
Intention,  54. 

and  degree  of  turpitude,  268 
criminal,   150,  268. 
difficulty  of  proof  of,  166. 
necessary   in   crime,   55. 
Intermediate  motives,  49. 
Internal  factor,  the,  and  crime,  2, 

26,  125,  200. 
chief  constituents  of,  26. 
effect  of  circumstances  on,  30. 
modification  of,  35    (cf.  also  In- 
stinct,  Intellect). 
International  offenses,  no,  in. 

James  I.,  "  criminality  "  of,  70. 
Japan,  law  as  to  suicide  in,  140. 
Jealousy,  67. 

crimes  of,  178,  180. 

instinct  of,  177. 
Jurisprudence   and   emotions,  67. 

definition    of    crime    in,    92,    98, 
105. 

views  of  carelessness  and  negli- 
gence, 125,  126. 


INDEX 


287 


Jurisprudent,  functions  of  a,  72. 

Jury,  trial  by,  127. 

Juvenile  criminals,  252,  280-1. 

Kant,  a  celebrated  dictum  of,  88. 

Kingfisher's  nest,  10. 

Kings,  English,  amenable  to  no 
law,  71. 

Kleptomaniacs,  true,  237  et  seq. 

Knowledge  an  essential  of  trans- 
fer, 161,  171. 

Law  and  custom,  115,  116. 

and  of  what  it  consists,  73. 

litigious  nature  of,  170. 
Libel,  law  of,  153. 
Live  stock,  mutilation  of,  151. 
Lombroso,  228. 

doctrines  of,  39. 

his  definition  of  a  criminal,  71. 

his  Wew  of  criminals,  205,  209, 


Madmen,  responsibility  of,  58,  226. 
Madness,     criminality      and,     212 

(see  also  Insanity). 
Magpie,  the,  nest-building  of,  to. 
"  Malice   aforethought,"  68. 
Malice,  crimes  of,  145  et  seq. 
Malicious  damage  to  property,  151. 

wounding,   148. 

Man,    actuated    by    three    primary 
sets  of  instincts,  99. 

and  reason,  5. 

and  the  social  habit,  77. 

his  part  in  society,  82,  83. 

his    three    fundamental    sets    of 
instincts,   90. 

instinct  a  concomitant  of  reason 
in,  1 6  et  seq. 

potential    criminal    instincts    of, 

228,  256. 

Manslaughter,   malicious,   148. 
Marital   infidelity,   181. 
Marriage,  178,  188. 

early,    187. 

offenses  against,  188  et  seq. 
Mental  constitution,  26. 

faculties,  47. 

incapability,   an  instance  of,   58. 
Military  service,  158. 
Mind,    the,    primary    departments 

of,  47. 
Mitigated  turpitude,  68. 


Modesty,  offenses  against,  179,  185. 
Monopolies,  State,  135,  136. 
Moral   conduct,   the   true  test  for, 
88. 

imbeciles,  234,  235   et  seq.    (see 
also  Instinctive  criminals). 

training,  34. 

value  of,  257,  258. 
Morality,  33. 

the  first  lesson  in,  257,  258. 
Motive  an  essential  of  crime,  92. 

and  crime,  100. 

and  degree  of  turpitude,  267. 

postponement  of,  20  et  seq. 
Motives,  intermediate,  49. 

proximate,  49. 

to  conduct,  48  et  seq.,  144. 

ultimate,  49. 
Murder,  189. 

a  mistaken  classification  of,  107. 

an  anti-social  crime,  99. 

for  gain,  174. 

malicious,   148. 
Mutilation  of  live  stock,  151. 

National  crimes,  two  kinds  of,  in 

et  seq. 
Negligence,   a  jurisprudent's  view 

of,  126. 
Nervous   system,   the,   influence   on 

conduct,  7. 

Nest-building  of  birds,  10. 
Nidification,  10,  13. 

Occasional  criminals,  232,  248. 
Offenses  against  chastity,  179,  185. 

against  marriage,  188  et  seq. 

against  the  racial  principle,  180, 
191. 

committed  for  gain,  156. 

for    personal    security,    154    (see 

also  Crimes). 
Officers    of    State,    crimes    against, 

130. 

Official  position,  abuse  of,  132 
Omission,    crimes   of,    125. 
Opportunity  and  crime,  40  et  seq. 
Organic  life,  a  new  aspect  of,  81. 
Original  sin,  doctrine  of,  202,  227. 
Ostrich,  nest  of  the,  10. 
Ownership   and  property,  157. 

Pain,  self-infliction  of,  25. 
Parental   affection,  90. 
instinct,  50. 


288 


CRIME  AND  CRIMINALS     - 


Parkman,  Dr.,  murder  of,  57. 
Peace,  breach  of,  120,  121. 
Penitentiaries,  228. 
Personal  security,  offenses  for,  154. 

violence  and  assault,  132. 
Personation,   129. 
Police    districts    in    England    and 

Wales,  number  of,  263. 
Political  offenses,  267. 
Porphyry's   division   of   the   genus 

animal,  5. 

Positive  doctrine,  the,  206. 
Post-epileptic  automatism,  28. 
Post-office  monopoly,  the,  135,  136. 
Praxiology,  definition  of,  xi. 
Press,  the  censorship  of  advertise- 
ments, 255. 
Prevention  of  crime,  253  et  seq. 

measures  for,  128,  253  et  seq. 
Primitive  desires,   56. 
Prison  system,  reform  of,  34. 
Private  crimes,  112,  143  et  seq. 
Procuring  abortion,  195. 
Property,  acquisition  of,  160. 

and  ownership,  156. 

basis  of,  158. 

malicious  damage  to,  151. 

omissions  in  law  as  to,  162. 

three  kinds  of,  158. 

transfer  of,   160. 
Prostitution,  185,  186,  187. 
Protective  laws,  137. 
Proximate  motives,  49. 
Psychology,  definition  of,  xi. 

of  crime,  the,  47  et  seq. 
Desire  and  Aversion,  48. 
feeling,  65. 
intellect,  55. 
will,  61. 
Public  crimes,  99  et  seq.,  113  et  seq. 

offenses,  minor,  133  et  seq. 

subsidiary,  123. 
Pugnacity,  147. 

crimes  prompted  by,  145. 
Punishment,  264  et  seq. 

as  deterrence,  275. 

for  crime,  93,  94. 

promptitude  and  certainty  of, 
the  only  deterrent  of  crime, 
278. 

record  of  the  criminal  and,  272. 

the  function  of,  205. 
Pyromania,  239. 


Quinton,  Dr.,   57. 

Racial  instincts,  89  et  seq. 

motives,  144. 

principle,    offenses    against,    180, 

191. 

Railway  trains,  wrecking  of,   152. 
Reason  and  instinct,  5  et  seq. 

and   motive,  51. 

as  understood  by  the  ancients,  5. 

meaning  of,  22. 

(See  also  Intellect.) 
Recidivists,  239,  262. 
Reform  of  the  criminal,  284. 
Religion,  34,  94,  114,  117. 
Reproduction    a    fundamental    in- 
stinct, 78. 

antagonistic  forces,  83. 
Retaliation  the  primary  purpose  of 

punishment,   265,   275. 
Revenue,  the,  crimes  against,  129. 
"Right  to  Punish,"  the,  72. 
Robin,   the,   and  the   establishment 

of   social    life,   89 
Roman  law,  suicide  and,  140. 
Rooks,     nest-building    of,     10,     13, 

Royal  Society,  the,  its  Fellowships, 


Salutary  Laws,  138. 
Sand-martin's  nest,  xo. 
Sedition,  nx. 
Self-control,  23  et  seq.,  86,  87. 

and  celibacy,  24. 

meaning  of,  25. 
Self-denial,  23. 

meaning  of,  24. 
Self-infliction  of  pain,  25. 
Self-preservation,     a    fundamental 
instinct,  79. 

antagonistic  conduct,  83. 
Self-preservative      class,      private 

offenses  of,  145. 
Self-restraint,  23  et  seq. 
Self-sacrifice,  87. 
Selfish  motives,  144. 
Selfishness,  257,  270. 

impressed  into  the  service  of  so- 
ciety, 97. 

the  root  of  crime,  143,  176,  277. 
Sensations,  67. 

Severity   of    punishment,    inefficacy 
of,  276,  278. 


INDEX  * 


289 


Shoplifters,  244. 

Shoplifting,  difference  from  klepto- 
mania, 239. 
Smuggling,  36,  37. 
assumptions       of        Continental 

criminologists   on,   37. 
Social  conduct,  essentials  for,  87. 
habit,  as  aid  to  survival,  81. 
biological  value  of  the,  73   et 

seq. 

instinct,  the,  33  et  seq. 
life  as  an  aid  to  survival,  81. 
conditions  of,  84. 
importance  of,   177. 
motives,  144. 

Socialization,  aids  to,  93  et  seq. 
complete   and   incomplete,   92   et 

seq. 
Society,  crime  as  conduct  injurious 

-4o,  92. 
mlasures    for    crime-prevention, 

93  ft  seg. 
power   of   the   central    authority 

in,  114. 

Solitude,  irksomeness  of,  84. 
Specialists  in  crime,  241. 
Spectator,  the,  and  animal  reason- 
ing. 5.  6. 
Spencer,  Herbert,  73. 

and   the  Royal    Society,  xii. 
Spiders  and   instinct,  8,  u,  20. 
Spiders'   webs,   8,    u. 
State,   the,   crimes   against,   no   et 

seq. 

monopolies  of,  135,  136. 
primary   functions   of,    115,   116, 

*33- 
second    and    minor   functions   of, 

134,  136. 
Statistical       Method       (Goring's), 

criticism  of,  215  et  seq. 
Stealing,   165. 

the  use  of  things,  163. 
Stephen,    Sir  James   Fitzjames,   x, 

47,  58. 

and   motive,  268. 
his  definition  of  crime,  70. 
on  suicide,  139,  140. 
on  the  right  to  punish,  71. 
on  will,  62. 

Suffragette  outrages,  the,  132,  143. 
Suicide,  138  et  seq.,  182  et  seq. 
a  felony  in  England,  140,  142. 
author's  opinion  on,  141. 


Suicide,  consequences  of  a  verdict 
of  felo-de-se,  212. 

epidemics  of,  141. 

law  in  Japan  as  to,  140. 

old-time     post-mortem      punish- 
ment of,  142. 

originally    an    ecclesiastical    of- 
fense, 139,  140. 

regarded   as  madness,  212. 

Roman  law  regarding,  140. 

varying    views    of,    in    different 

countries,  140. 
Suttee  in  India,  140. 

Tailor-bird's  nest,  10. 
Temptation,  269. 

and  crime,  40  et  seq.,  253,  256, 

274- 

as  a  factor  in  crime,  225,  230-1. 
Tern,  nest  of  the,  10. 
Thrift,  self-denial  and,  24. 
Tichborne  case,  173. 
-Timidity,  146. 
Tit,    long-tailed,    domed   nests   of, 

10. 

Trades-union  crimes,  143. 
Transfer  of  property,  160. 
Transportation,   141. 
Treason,  n8. 
Treason-felony,   131. 
Trial  by  jury,  127. 
Turpitude,  mitigated,  68. 
of  crime   and   of  criminal,   108, 

265  et  seq. 

Ultimate  movements,  49. 
Unconscious  mind,  the,  doctrine  of, 

41. 

Unnatural   offenses,   186,   190,   198. 
originally   ecclesiastical  offenses, 

198. 

Unpunctuality  a  theft,  162. 
Unselfishness  the  first  condition  of 

social  life,  86. 

Variation   of  Animals  and  Plants 

(Darwin's),   218. 
Vindictiveness,  68,  146. 

crimes  prompted  by,  145. 
Violence,  crimes  of,  280. 

persona],  132. 
Volition,  63  et  s^eq. 

determines  criminality,  63,  64. 

inseparable  from  intention,  65. 


CRIME  AND  CRIMINALS 


Volition,  meaning  of,  63. 
(See  also  Will.) 

Walton,  Mr.  Justice,  238. 
Warranty,  breach  of,   172. 
Webster,     Dr.,     murder     of 
Parkman  by,  57. 


Dr. 


Wellington,  Duke  of,  132. 

Wild,  Jonathan,  156. 

Will,  the  faculty  of,  61  et  seg. 

functions  of,  62. 

(See  also  Volition.) 
Wounding,  malicious,  148. 


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in  its  various  ramifications." — Boston  Transcrpt. 

U  HUNG  CHANG 
By  J.  O.   P.   BLAND 

"  Discloses  most  instructively  the  complex  character  of  the  great 
Chinese;  his  strength  and  his  weakness." — The  Argonaut. 

BISMARCK 

By  C.   GRANT  ROBERTSON 

Of  especial  interest  now,  when  the  world  is  viewing  the  wreck  of  the 
Empire  Bismarck  built.  The  book  contains  much  new  material,  including 
the  authentic  text  of  the  famous  Ems  dispatch. 

HENRY  HOLT  AND  COMPANY 
PUBLISHERS  NEW  YORK 


By  DOROTHY  CANFIELD  FISHER 

Author  of  The  Squirrel-Cage,  Hillsboro  People,  etc. 

A  MONTESSORI  MOTHER 

Illustrated,  $1.35  net. 

This  authoritative  book,  by  a  trained  writer  who 
has  been  most  intimately  associated  with  Dr.  Mon- 
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A  simple,  untechnical  account  of  the  apparatus,  the 
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^*^.  "Fascinating  reading  and  likely  to  be  the  most  interesting  to  the 
average  mother  of  all  the  many  books  on  the  subject."  —  Primary  Plans, 
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lying their  best  growth  and  development."  —  MRS.  ROBERT  M.  LA  FOLLETTE 
in  La  Foliette's  Magazine. 

MOTHERS  AND  CHILDREN 


After  the  publication  of  A  Montessori  Mother  two 
years  ago,  Mrs.  Fisher  was  overwhelmed  with  personal 
letters  from  all  over  the  country  asking  special  advice. 
Mothers  and  Children,  running  along  its  easy,  half- 
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the  clue  to  the  answer  of  ten  thousand  more. 

"The  Tarnishing  Eye  of  Relations"  is  the  title  of 
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and  Mothers-by-Choice." 

"A  book  of  help  for  the  most  complicated  and  important  enterprise 

om  of  an  expe 
Evening  Post. 


ep    o        e  mos    compcae     an      mpo 

in  the  world  —  the  rearing  of  children.     It  gives  the  wisdom  of  an  expert 
in  the  language  of  a  friend  'just  talking.'  '—  New  York  E 


HENRY      HOLT      AND      COMPANY 

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BIOLOGY  AND  ITS  MAKERS 

By  WILLIAM  A.  LOGY,  Professor  of  Biology  in  Northwestern 
University.  123  illustrations,  460  pp. ,  8vo.  $300  net. 

Tells  the  story  of  the  me  of  biology  from  the  renaissance  of 
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of  the  broad  science  of  biology."—  The  Dial. 

"  Whether  the  reader  be  layman,  or  a  college  student,  or  a  biologist  whose 
life-work  is  nearing  completion,  this  summary  of  achievements  will  be  an 
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— Dr.  Walter  Libby  in  The  American  Journal  of  Psychology. 

If  the  reader  will  send  his  name  and  address  the  publishers  will  send, 
from  time  to  time,  information  about  their  new  books.  f 

HENRY   HOLT    AND     COMPANY 

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BOOKS    ON    SOCIAL    SCIENCE* 

SOCIAL  INSURANCE 
BY  I.  M.  RUBINOW.    Octavo.    $4.00  net. 

The  only  comprehensive  work  in  English  on  its  very 
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gent thinking,  the  book  is  most  important." — Literary 
Digest. 

AMERICAN  LABOR  UNIONS 
(BY  A  MEMBER) 

BY  HELEN  MAROT,  Executive  Secretary  Women's 
Trades  Union  League.    $1.50  net. 

The  American  Labor  Union  from  the  inside.  What 
it  thinks  and  believes  and  says  about  itself. 

"One  of  the  most  important  of  recent  books  on  the 
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THE  COMING  NEWSPAPER 
MERLE  THORPE,  Editor.    $1.50  net. 

A  symposium  by  such  authorities  as  Oswald  Garrison 
Villard,  Melville  E.  Stone,  Lieut.  Gov.  Barrett  O'Hara 
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HENRY      HOLT      AND      COMPANY 

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The  Third  Edition,  Revised  and  Enlarged,  of 

THE   HOME   BOOK  OF  VERSE 

COMPILED    BY 

BURTON  E.  STEVENSON 

has  been  revised  from  end  to  end — 590  poems  have  been 
added,  pages  renumbered,  author,  title,  and  first  line  in- 
dices, and  the  biographical  matter  corrected,  etc.,  etc. 

The  hundreds  of  letters  from  readers  and  poets  suggest- 
ing additions  or  corrections  as  well  as  the  columns  of 
reviews  of  the  first  edition  have  been  considered.  Poets 
who  were  chary  of  lending  their  support  to  an  unknown 
venture  have  now  generously  permitted  the  use  of  their 
work. 

This  edition  includes  the  "new"  poets  such  as  MASE- 
FIELD,  CHESTERTON,  FROST,  RUPERT  BROOKE,  DE  LA 
MARE,  RALPH  HODGSON,  etc. 

"A  collection  so  complete  and  distinguished  that  it  is 
difficult  to  find  any  other  approaching  it  sufficiently  for 
comparison." — New  York  Times  Book  Review  on  the 
first  edition. 

India  Paper,  4,096  pages 

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Cloth,  two  volumes,  $12.50  net. 

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Half  Morocco,  two  volumes,  $25.00  net. 


HENRY    HOLT    AND    COMPANY 

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A     000  036  059     4 


